Petition for Writ of Certiorari — Heriberto Menendez, Petitioner v. Marshall Garber

NO. _____

In the Supreme Court of the United States

________________

HERIBERTO MENENDEZ, M.D.,

Petitioner,

v.

MARSHALL GARBER,

________________

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

________________

PETITION FOR A WRIT OF CERTIORARI

________________

Kevin Norchi

Brendan Richard

NORCHI FORBES LLC

23240 Chagrin Boulevard,

Suite 210

Cleveland, Ohio 44122

(216) 514-9500

J. Carl Cecere

Counsel of Record

CECERE PC

6035 McCommas Blvd.

Dallas, Texas 75206

(469) 600-9455

ccecere@cecerepc.com

Counsel for Petitioner

October 29, 2018

i

QUESTION PRESENTED

For over a century, Ohio has maintained a statute, like

others in all 50 states, that tolls limitations when the defendant is “out of ” or “departs from” the state. Ohio Rev.

Code § 2305.15. In Bendix Autolite Corp. v. Midwesco

Enterprises, Inc., 486 U.S. 888 (1988), the Court held §

2305.15 imposes “impermissible burden on commerce,”

id. at 892, when applied to non-residents. This was because of the unique disability it foisted on non-residents:

As they are always “absent from the state,” they remain

subject to perpetual liability. And the Court concluded

that this non-resident burden was not offset by any legitimate benefit to plaintiffs, given the ease of using longarm statutes to sue non-residents in the postInternational Shoe world. Id. at 889-890.

Yet there is a deep, acknowledged split among U.S.

courts over the proper application of such out-of-state

tolling statutes to residents who permanently leave the

state, and thus become non-residents, after the events

underlying the suit—thereby incurring equally perpetual

liability. One circuit and six state supreme courts have

held these statutes impose impermissible burdens on interstate commerce when applied in these circumstances,

or have interpreted statutes narrowly to avoid that result. The Sixth Circuit, by contrast, held that these statutes impose no cognizable burden on interstate commerce in these circumstances. The question presented is:

Whether a state statute that tolls limitations while

the defendant is absent from the state imposes constitutionally impermissible burdens on interstate commerce

when applied to a resident who permanently departs the

state after the events giving rise to suit, yet remains

amenable to service under the state’s long-arm statute.

ii

PARTIES TO THE PROCEEDING

All parties are listed in the caption.

iii

TABLE OF CONTENTS

Question presented .............................................................. i

Parties to the proceeding .................................................... ii

Table of contents ................................................................. iii

Table of authorities .............................................................. v

Opinions below ..................................................................... 1

Jurisdiction........................................................................... 2

Constitutional and statutory provisions involved ............ 2

Statement ............................................................................. 3

A.

Background .......................................................... 4

B.

Factual background ............................................. 8

C.

The decision below ............................................. 10

Reasons for granting the writ .......................................... 14

A.

This case cements an acknowledged, widespread conflict among the circuit courts

and state courts of last resort........................... 15

1.

Courts holding that application of outof-state tolling statutes to departing

residents is unconstitutional. ................... 15

2.

Courts that interpret out-of-state

tolling statutes narrowly to avoid

constitutionality problems. ....................... 19

3.

The absence of authority supporting

the Sixth Circuit. ....................................... 20

B.

The decision below is wrong. ............................ 23

C.

The Question Presented is important. ............ 32

D. This case provides a compelling vehicle to

decide these issues............................................. 34

iv

Conclusion .......................................................................... 35

Appendix:

Appendix A:

Published Opinion in the United States Court of Appeals for the Sixth Circuit (May 1, 2018) ..................... 1a

Appendix B:

Order denying petition of rehearing en banc in the

United States Court of Appeals of the Sixth Circuit

(June 1, 2018) ................................................................. 17a

Appendix C:

Memorandum of Opinion and Order file in the United

States District Court for the Northern District of Ohio

Eastern Division (August 28, 2017) ............................. 19a

Appendix D:

Complaint In The Court of Common Pleas, Ashland

County, Ohio ................................................................... 28a

v

TABLE OF AUTHORITIES

Cases:

Abramson v. Brownstein,

897 F.2d 389 (9th Cir. 1990) ................................ 20, 21, 22

Ashley v. Hawkins,

293 S.W.3d 175 (Tex. 2009) ............................................. 20

Bendix Autolite Corp. v. Midwesco Enters., Inc.,

486 U.S. 888 (1988) ................................................. passim

Blyth v. Marcus,

517 S.E.2d 433 (S.C. 1999) ............................................. 19

Bottineau Farmers Elevator v. WoodwardClyde Consultants,

963 F.2d 1064 (8th Cir. 1992) .......................................... 16

Burnham v. Superior Court of Cal.,

495 U.S. 604, 616 (1990) ............................................... 4, 5

Caminetti v. United States,

242 U.S. 470 (1917) ......................................................... 27

Camps Newfound/Owatonna, Inc. v. Town of

Harrison, Me.,

520 U.S. 564 (1997) ......................................................... 27

Dan Clark Family P’ship v. Miramontes,

122 Cal Rptr.3d 517 (Cal. App. 2011) ...................... 18, 22

De Niz Robles v. Lynch, 803 F.3d 1165

(10th Cir. 2015) ............................................................ 4, 25

Dew v. Appleberry,

591 P.2d 509 (Cal. 1979) .................................................... 6

Edwards v. California,

314 U.S. 160 (1941) ........................................10, 11, 27, 28

vi

Cases—continued:

First Tennessee Bank Nat’l Ass’n v. Newham,

859 N.W.2d 569 (Neb. 2015) ............................... 17, 18, 26

G.D. Searle & Co. v. Cohn,

455 U.S. 404 (1982) ................................................... 12, 24

Gibbons v. Ogden,

9 U.S. (Wheat.) 1 (1824) ................................................. 27

Goolsby v. Anderson Concrete Corp.,

575 N.E.2d 801 (Ohio 1991) ....................................... 5, 24

Heritage Mkt’g Servs., Inc. v. Chrustawka,

73 Cal. Rptr.3d 126 (Ct. App. 2008) ........................ 18, 22

Hoke v. United States,

227 U.S. 308 (1913) ................................................... 17, 27

Johnson v. Rhodes,

733 N.E.2d 1132 (Ohio 2000) ................................... 14, 18

Knappenberger v. Davis-Stanton,

351 P.3d 54 (Or. Ct. App. 2015) ............................ 6, 21, 22

Kuk v. Nalley,

166 P.3d 47 (Alaska 2007) ........................................... 5, 19

McBurney v. Young,

569 U.S. 221 (2013) ............................................. 12, 30, 34

Olseth v. Larson,

158 P.3d 532 (Utah 2007) .................................................. 6

Pennoyer v. Neff,

95 U.S. 714 (1877) ......................................................... 4, 5

Perkins v. Benguet Consol. Mining Co.,

342 U.S. 437, 445 (1952) ................................................... 7

Pike v. Bruce Church, Inc.,

397 U.S. 137 (1970) ........................................................... 7

vii

Cases—continued:

Goolsby v. Anderson Concrete Corp.,

575 N.E.2d 801 (Ohio 1991) ............................................. 5

Rademeyer v. Farris,

284 F.3d 833 (8th Cir. 2002) ...................................... 15, 16

Saenz v. Roe,

526 U.S. 489 (1999) ......................................................... 11

Seeley v. Expert, Inc.,

269 N.E.2d 121 (Ohio 1971) ............................................. 6

State ex rel Bloomquist v. Schneider,

244 S.W.3d 139 (2008) (en banc), abrogated on

other grounds by State ex rel Norfolk S. Ry.

Co. v. Dolan, 512 S.W.3d 41 (Mo. 2017). ........................ 16

Tesar v. Hallas,

738 F. Supp. 240 (N.D. Ohio 1990) ................................ 33

United Haulers Ass’n, Inc. v. Oneida-Herkimer

Solid Waste Mgmt. Auth.,

550 U.S. 330 (2007) ........................................................... 7

Vaughn v. Deitz,

430 S.W.2d 487 (Tex. 1968) ............................................. 20

Constitutional Provision:

U.S. Const. art. I, § 8, cl. 3 .................................................. 2

Statutes:

Alaska Statutes 09.10.130 ................................................. 19

An Act for the Limitation of Actions, ch. 213, § 2

(1810), reprinted in 1 The Statutes of Ohio and

of the Northwestern Territory 656 (Salmon P.

Chase, ed., 1833) ............................................................... 4

Cal. Civ. Proc. Code § 351 ................................................. 17

viii

Statutes—continued:

Ky. Rev. Stat. § 413.190 ....................................................... 6

La. Rev. Stat. § 9:5802 ......................................................... 6

Mo. Rev. Stat. § 506.200 ................................................ 6, 15

N.D. Rev. Stat. § 28-01-32 ................................................... 6

Ohio Rev. Code § 2305.113 .................................................. 9

Ohio Rev. Code § 2305.15 .......................................... passim

Ohio Rev. Code § 2305.16 .................................................... 9

S.C. Code § 15-3-30............................................................ 19

Tex. Civ. Prac. & Rem. Code § 16.063 ............................. 20

Rules:

Ohio Civ. R. 10(D)(2)............................................................ 9

Ohio Civ. R. 3(a) ................................................................... 5

Other Authorities:

Robert C. Casad, Jurisdiction in Civil Actions

(4th ed. 2017) ..................................................................... 5

Colleen Chien, Startups and Patent Trolls, 17

STAN. TECH. L. REV. 461 (2014)..................................... 30

Walter W. Heiser, Can the Tolling of Statutes of

Limitations Based on the Defendant's

Absence from the State Ever Be Consistent

with the Commerce Clause?, 76 Mo. L. Rev.

385 (2010) ......................................................................... 22

Catherine Tucker, The Effect of Patent

Litigation and Patent Assertion Entities on

Entrepreneurial Activity 2 (MIT Sloan Sch. of

Mgmt., Working Paper No. 5095-14, 2014) .................. 30

ix

Other Authorities—continued:

H.G. Wood, A Treatise on the Limitation of

Actions at Law and in Equity (Dewitt C.

Moore, ed., 4th ed. 1916) .................................................. 5

In the Supreme Court of the United

States

________________

No.

HERIBERTO MENENDEZ, M.D.,

v.

Petitioner,

MARSHALL GARBER,

Respondent.

________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

________________

PETITION FOR A WRIT OF CERTIORARI

________________

Petitioner Heriberto Menendez, M.D., respectfully

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Sixth Circuit in this case.

OPINIONS BELOW

The Sixth Circuit’s opinion (Pet. App. 1a) is published

at 888 F.3d 678. Its order denying rehearing en banc (id.

17a) is unpublished. The relevant excerpts from the district court proceedings (id. 19a–35a) are unpublished.

(1)

2

JURISDICTION

The Sixth Circuit issued its opinion on May 1, 2018,

and denied a timely petition for rehearing en banc on

June 1, 2018. Justice Kagan, then Circuit Justice for the

United States Court of Appeals for the Sixth Circuit, extended the time to file a petition for writ of certiorari to

and including October 29, 2018. This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Commerce Clause of the U.S. Constitution provides:

The Congress shall have Power *** To regulate

Commerce with foreign Nations, and among the

several States, and with the Indian Tribes;

U.S. Const. art. I, § 8, cl. 3.

Ohio Rev. Code § 2305.15 provides:

(A) When a cause of action accrues against a person, if the person is out of the state, has absconded, or conceals self, the period of limitation for

the commencement of the action as provided in

sections 2305.04 to 2305.14, 1302.98, and 1304.35

of the Revised Code does not begin to run until

the person comes into the state or while the person is so absconded or concealed. After the cause

of action accrues if the person departs from the

state, absconds, or conceals self, the time of the

person's absence or concealment shall not be

computed as any part of a period within which

the action must be brought.

3

STATEMENT

This case presents a question of great importance

about the proper boundary between Congress’s power to

regulate interstate commerce and the States’ power to do

the same—namely, whether states exceed their legitimate interstate regulatory authority when they deprive

defendant of limitations defenses if they depart the state

after the events giving rise to suit, even if those defendants remain amenable to suit under the state’s long-arm

statute. In these circumstances, such out-of-state tolling

statutes serve only as a means of economic capture, penalizing departing residents with perpetual liability for

their decision to pursue opportunities elsewhere.

Yet in this case, the Sixth Circuit concluded that

§ 2305.15 is no different than locals-only benefits that

states create for their residents—and that states are free

to deny residents if they depart the state. In doing so, the

lower court self-consciously moved the boundaries of

Court’s dormant Commerce Clause jurisprudence, and

cemented a long-simmering conflict among the circuits

and states that commentators have asked to be resolved.

What is more, the Sixth Circuit authorizes § 2305.15’s

heavy toll on interstate commerce only by refusing to

recognize that it is exacting any toll at all, and does so in

the teeth of this Court’s precedents establishing that

toll’s burdensome price. Accordingly, this case involves

none of the hard questions that sometimes divide the

Court over the balancing required in many dormant

Commerce Clause cases—no need to discern “whether a

particular line is longer than a particular rock is heavy.”

Bendix Autolite Corp. v. Midwesco Enters., Inc., 486

U.S. 888, 897 (Scalia, J., concurring). “[W]hen the stone

is very heavy and the line very short—then at least we

4

can be relatively sure of the right answer.” De Niz Robles

v. Lynch, 803 F.3d 1165, 1176 (10th Cir. 2015) (Gorsuch,

J.). This is one of those cases.

The petition for certiorari should be granted.

A. Background

1. Over a century ago, Ohio first enacted a statutory

provision tolling limitations periods when defendants

went missing or left Ohio. An Act for the Limitation of

Actions, ch. 213, § 2 (1810), reprinted in 1 The Statutes of

Ohio and of the Northwestern Territory 656 (Salmon P.

Chase, ed., 1833). The present version of that statute,

Ohio Rev. Code § 2305.15, is similar. It tolls limitations if

the defendant “has absconded, or conceals [him]self ” to

avoid the suit. It also contains a catch-all provision making clear that tolling occurs whenever “the person is out

of ” or “departs from the state”—regardless of why, and

regardless of whether he could be properly sued and

served.

Statutes like § 2305.15 once served a vital purpose

under the common-law rule, later converted into constitutional command, that state courts could only exercise

jurisdiction over defendants served with process within

the state. Pennoyer v. Neff, 95 U.S. 714, 722 (1877); see

also Burnham v. Superior Court of Cal., 495 U.S. 604,

616 (1990) (describing the common-law rule). In an era

when obtaining jurisdiction over non-resident or physically absent defendants was impossible, these statutes

protected plaintiffs by preventing limitations on their

claims from expiring before they could effectuate the

personal, in-state service Pennoyer and the common law

demanded. Accordingly, by the 1900s, most states had

passed laws tolling limitations on claims against out-of-

5

state defendants. 2 H.G. Wood, A Treatise on the Limitation of Actions at Law and in Equity § 244, at 1143-47

(Dewitt C. Moore, ed., 4th ed. 1916) (citing statutes).

2. Things changed, however, after International Shoe

Co. v. Washington, 326 U.S. 310 (1945), which provided

that “[d]ue process does not necessarily require the

States to adhere to the unbending territorial limits on

jurisdiction set forth in Pennoyer.” Burnham, 495 U.S.

at 618 (emphasis in original). Under the “long-arm” jurisdiction International Shoe permitted, states no longer

had to serve defendants in-state in order to hale them

into court. The States responded by passing “long-arm”

statutes that authorized suits against non-residents and

provided means for serving them, sometimes through

substituted service provisions that did not even require

personally locating the defendant. See 1 Robert C.

Casad, Jurisdiction in Civil Actions § 4.01[2][a] (4th ed.

2017). This largely obviated any need for out-of-state tolling laws. And many states, like Ohio, further aided their

obsolescence by changing their rules to make filing suit,

rather than effectuating service, the event satisfying limitations, thereby releasing the pressure to locate a defendant before limitations expired. Goolsby v. Anderson

Concrete Corp., 575 N.E.2d 801, 802 (Ohio 1991) (citing

Ohio Civ. R. 3(a)).

Thus sapped of their original purpose, many of these

out-of-state tolling statutes were revised or reinterpreted

to make defendants “absent” from the state only when

they went missing or lay beyond reach of the state’s longarm statute. See Kuk v. Nalley, 166 P.3d 47, 50-53 (Alaska

2007) (summarizing several such cases). In eight states,

including Ohio, however, these statutes remain on the

books unchanged. In some states, this is because their

6

courts have refused to narrow their statutes through judicial interpretation.1 In others, it is because neither the

courts nor the legislature has yet addressed the issue.2

Whatever the cause, these statutes survive only as protectionist restraints on interstate commerce.

3. So held the Court in Bendix Autolite Corp. v. Midwesco Enterprises, 486 U.S. at 889-891, which decided

that Ohio Rev. Stat. § 2305.15—the same statute at issue

in this case—imposed unconstitutional burdens on interstate commerce when applied to claims brought in an

Ohio lawsuit against an Illinois corporation about the

delivery and installation of a boiler system at the plaintiff ’s Ohio facility.

The Court held that “statutes of limitations” have an

intrinsic, “obvious” connection to commerce—as an “integral part of the legal system relied upon to protect the

liabilities of persons and corporations active in the commercial sphere.” 486 U.S. at 891. Thus, states might exceed their powers if they denied these “ordinary legal

defenses or like privileges to out-of-state persons or corporations engaged in commerce,” triggering scrutiny under the dormant Commerce Clause. Ibid. “[T]he state

law” must then “be reviewed *** to determine whether

the denial is discriminatory on its face,” and therefore

per se invalid, United Haulers Ass’n, Inc. v. Oneida1

Seeley v. Expert, Inc., 269 N.E.2d 121, 125-126, 128 (Ohio 1971);

Olseth v. Larson, 158 P.3d 532, 535-39 (Utah 2007); Dew v. Appleberry, 591 P.2d 509, 511-513 (Cal. 1979); Knappenberger v. DavisStanton, 351 P.3d 54, 60 (Or. Ct. App. 2015).

2

Ky. Rev. Stat. § 413.190; La. Rev. Stat. § 9:5802; Mo. Rev. Stat.

§ 516.200; N.D. Rev. Stat. § 28-01-32.

7

Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 338339 (2007), or “an impermissible burden on commerce”

under Pike v. Bruce Church, Inc., 397 U.S. 137, 144-146

(1970).

The Court indicated that § 2305.15 might be invalidated as facially discriminatory “without extended inquiry,” 486 U.S. at 891, because of the ugly Hobson’s

choice it put to non-resident corporations—and only foreign corporations. They could become Ohio residents, by

appointing agents for service of process (thereby, in the

Court’s view, consenting to “general jurisdiction” in the

state’s courts).3 Id. at 889, 892-893. Or they could suffer

“forfeiture of the limitations defense, remaining subject

to suit in Ohio in perpetuity.” Id. at 893.

The Court declined to take that route, however, instead deciding that § 2305.15 could not even survive more

deferential Pike review, under circumstances that suggested few applications of out-of-state tolling statutes

would ever survive such review. The Court deemed the

Hobson’s choice that § 2305.15 posed for non-resident

corporations to be a “significant burden,” and a “substantial restraint[]” on interstate commerce. 486 U.S. at 891,

893. The Court also questioned whether, after International Shoe, the statute still had any legitimate benefit

for plaintiffs. The Court determined that “the ability to

3

In reaching the conclusion that a non-resident corporation’s

appointment of an in-state agent for service of process might subject

the corporation to general jurisdiction, the Court did not consider its

precedent that such appointments do not necessarily constitute consent to general jurisdiction. Perkins v. Benguet Consol. Mining Co.,

342 U.S. 437, 445 (1952).

8

execute service of process on foreign corporations” might

be “an important factor to consider in assessing the local

interest” in tolling, and noted that “serving foreign corporate defendants may be more arduous than domestic

corporations,” but found these concerns absent where

the “Ohio long-arm statute would have permitted service” on the company “throughout the period of limitations.” Id. at 894. Bendix’s rule seemed clear: If the nonresident defendant can be located and long-arm service

is available, § 2305.15’s out-of-state tolling provision is

not.

Yet decades later, the Sixth Circuit would muddy the

waters considerably.

B. Factual background

In 2010, Dr. Heriberto Menendez treated fifteenyear-old Marshall Garber for fever, constipation, and

back pain. Pet. App. 29a. Three days later, Garber went

to the emergency room, where he related these same

routine symptoms, but also complained of difficulty moving his legs and feet. Id. 30a. These new neurological

symptoms led emergency physicians to discover that

Garber had a spinal epidural abscess—a rare accumulation of pus in the epidural space that mechanically compresses the spinal cord—which eventually cost Garber

the use of his lower extremities. Ibid. Garber pleaded no

facts to suggest he was having difficulty moving his legs

and feet when Menendez treated him. Yet he still blamed

Menendez for his injuries, claiming that the three-day

delay in diagnosis was the cause of his injuries. Ibid.

In April of 2014, Dr. Menendez retired from the practice of medicine and moved permanently to Florida. Pet.

App. 29a. There is no allegation that Menendez abscond-

9

ed or made any efforts to conceal himself. Indeed, nothing suggests Menendez had any notice of a potential suit

from Garber when he left Ohio.

Because Garber was a minor at the time of his injuries, Pet. App. 20a, Ohio law tolled the state’s 1-year limitations period for medical malpractice claims, Ohio Rev.

Code § 2305.113, until he turned 18, id. § 2305.16. Garber

claimed no difficulty in locating Menendez. Nor did he

suggest that Menendez was ever beyond reach of Ohio’s

long-arm statute when he left the state. Garber nonetheless had trouble initiating suit. Garber’s first suit was

timely, but it was still fatally defective because Garber

failed to substantiate his medical negligence claims with

the affidavit from a medical expert required under Ohio

Civil Rule 10(D)(2). Pet. App. 2a. It took two more attempts, over a period of 3 years, for Garber to properly

file suit and serve Dr. Menendez. Pet. App. Id. 2a-3a.

Menendez removed the lawsuit to federal court and

filed a motion to dismiss, arguing that Garber’s claims

fell outside Ohio’s 1-year statute of limitations for medical negligence claims. Pet. App. 3a. Garber maintained

that, because Ohio’s medical-malpractice limitations

statute, § 2305.13, is one of those tolled by Ohio Rev.

Code § 2305.15, his claims were saved—permanently

tolled after Menendez left the state. Pet. App. 3a.

Menendez countered that applying § 2305.15 to toll

claims against him would be unconstitutional under Bendix. Ibid.

The district court agreed with Menendez and dismissed the case. Pet. App. 19a. It noted that § 2305.15

gave individuals like Menendez “an even more draconian

choice to make” than it gave to the corporation in Bendix, “because there is no mechanism by which an individ-

10

ual could register with the state for service of process.”

Id. 24a (internal quotation omitted). The only way a departing resident can end § 2305.15’s perpetual liability is

to turn around and return to Ohio. The district court held

that this burden on departing residents—one “even

greater than in Bendix,” Pet. App. 25a—burdened interstate commerce because Petitioner’s “decision to permanently leave Ohio for Florida” itself “implicated the

Commerce Clause” under this Court’s precedent,

“‘whether the transportation is commercial in nature’” or

not. Ibid. (quoting Edwards v. California, 314 U.S. 160

n.1 (1941)).

C. The decision below

A panel of the Sixth Circuit Court of Appeals reversed. Pet. App. 2a. The panel recognized Bendix’s holding that § 2305.15 cannot be constitutionally applied to

non-residents. Id. 14a-15a. Yet the panel held that same

statute could be constitutionally applied to Menendez because he only became a non-resident after the events giving rise to the lawsuit, even if he was a non-resident

when he was sued. The panel emphasized that Menendez

treated Garber “in Ohio,” while “Dr. Menendez lived in

Ohio.” Id. 15a.

1. To the panel, this quirk of circumstance made the

case categorically different from Bendix, because Bendix

involved an “an out-of-state company,” and—at least in

the panel’s view—concerned a “traditional interstate

business transaction.” Pet. App. 15a. That, to the panel,

meant that Menendez was an Ohio resident during the

“medical/business” transaction at the core of the case.

Ibid. Menendez was not “out-of-state” at that time, it

concluded, so that application of § 2305.15 to him involved

11

no “favoritism toward in-state firms over out-of-state

ones.” Ibid. And because Menendez treated Garber in

Ohio, the panel concluded that § 2305 imposed no “cost

on [any] traditional interstate business transaction,” and

imposed no “cognizable burden on any interstate market.” Pet. App. 12a. The panel thus concluded the case

was not “governed by the dormant Commerce Clause” at

all. Id. 12a. And because the panel dismissed Bendix’s

relevance, it ignored Bendix’s result, under which the

fact that Menendez was always amenable to service under Ohio’s long-arm statute would have been fatal to tolling under § 2305.15’s out-of-state tolling provision. 496

U.S. at 894.

2. The panel rejected Menendez’s argument that the

statute’s burden on his right to relocate had sufficient

connection to interstate commerce to trigger Commerce

Clause scrutiny, and parted ways with the Court’s precedent in doing so. The panel concluded that such concerns

about whether the law “discourage[d] Ohio residents

from moving” or deprived “other States of the commercial benefits that new residents might bring,” Pet. App.

10a, ought to be relegated to protection under the noneconomic “right to travel” recognized in Saenz v. Roe,

526 U.S. 489, 500–01 (1999), and did not weigh in the

dormant Commerce Clause calculus, id. 13a. This despite

its acknowledgment of precedent like Edwards v. California in which the connection between interstate commerce and interstate travel was established.

The panel instead concluded that if Ohio’s tolling

rules favored residents, that favoritism was merely akin

to “[p]olicy incentives that entice residents to stay in a

State”—like an “in-state tuition break,” or local preference in “licensing fees,” which “residents put in jeopardy

12

if they move.” Pet. App. 10, 11a, 16a. Applying this

Court’s decision in McBurney v. Young, 569 U.S. 221

(2013), which upheld the constitutionality of one such residents’-only benefit, a local preference in access to “Virginia public records,” the panel concluded that forcing

departing residents to surrender such local preferences

at the border imposed no cognizable burdens on interstate commerce. Pet. App. 11a.

The panel likewise criticized Menendez for providing

no “evidence” demonstrating § 2305.15’s burdens on departing residents—although Bendix contained no requirement that he produce such evidence. Pet. App. 12a.

The panel then hypothesized that burden to be a small

one, by focusing on the shortness of Ohio’s statute of limitations for medical malpractice, and speculating that “it

is fair to wonder how many Ohio Doctors” would have

altered their retirement plans based on the tolling rule.

Ibid. It therefore dismissed Petitioner’s concerns as

merely “hypothetical.” Ibid.

3. On the benefits side of the Pike equation, the panel

concluded that § 2305.15 remained useful for Ohio plaintiffs even after International Shoe obviated its original

purpose, claiming it retained utility for a plaintiff faced

with a defendant who “‘remains potentially difficult to

locate’ and ‘may not be so easy to find and serve’” after

departing the state. Pet. Appx. 16a (quoting G.D. Searle

& Co. v. Cohn, 455 U.S. 404, 410 (1982)). The panel found

this “enough of a local benefit to survive Pike review on

this record,” ibid, despite the fact that Garber alleged no

difficulty locating or serving Menendez, and in spite of

Bendix’s direct admonition that such concerns are generally “insufficient to withstand Commerce Clause scrutiny.” 486 U.S. at 894.

13

4. The panel also rejected the argument that

§ 2305.15 was facially discriminatory against interstate

commerce. Despite Bendix’s plain lesson that the statute

did have discriminatory effects against non-residents

(including recent non-residents), and despite recognizing

that the Ohio tolling statute would “affect out-of-state

residents more than in-state ones,” Pet. App. 9a, the panel concluded that the statute did not “explicitly discriminate[] against interstate commerce,” because the law was

even-handed in its distribution of discriminatory burdens. Id. 8a. The panel noted that the statute imposed

indefinite tolling “for [any] defendant outside of the State

regardless of whether he once resided in Ohio or not.” Id.

9a. The panel also concluded that the law had no “disguis[ed] *** protectionist effect” because it did not “operate like an embargo on interstate commerce,” ibid,

once again failing to recognize that mere burdens on interstate commerce, no less than complete embargos, can

trigger dormant Commerce Clause scrutiny.

5. These departures from this Court’s precedent were

no accident. The panel made clear its belief that the law

had changed since Bendix, or ought to change. The panel took pains to note that “the Court has not invalidated a

law under Pike balancing in three decades”—since Bendix itself. Pet. App. 13a. And it stated that “[t]he meaning

of the Commerce Clause” too has “not stood still.” Id. 6a.

The panel pointed to technological and legal changes that

had, in its view, blurred the lines between the matters

reserved to “the National Government” and those for

“the States.” Id. 7a. And it claimed this “overlapping authority over interstate commerce” removed the “imperative” for judicial doctrine to keep each “in their separate

spheres.” Ibid.

14

6. Menendez sought en banc rehearing. He criticized

the panel for ignoring this Court’s “century-old understanding” of the connection between interstate travel and

interstate commerce. Rehr’g Pet. 9. And he pointed out

that the panel decision created conflicts with other circuits and state courts of last resort, creating a particular

inequity for him a result of those conflicts. Id. 14.

Menendez noted that the panel’s decision departed from

the Ohio Supreme Court’s resolution of “the same question for the same statute,” Id. 3, 14 (citing Johnson v.

Rhodes, 733 N.E.2d 1132 (Ohio 2000)), thereby penalizing

Menendez for his decision to remove the case to federal

court. Id. at 15-16.

The Court denied rehearing. Pet. App. 17a.

REASONS FOR GRANTING THE WRIT

The traditional criteria of certworthiness are all present here. There is an acknowledged and fully developed

split on the question presented, one recognized by commentators and appellate courts alike, but that has only

now percolated into a full-blown division among circuit

courts and state high courts as the result of this case.

This question is right now leading to different outcomes

in similar cases across jurisdictional lines. This case is a

compelling one for resolving the split, as it presents an

opportunity to create a clear body of law for the constitutional application of all out-of-state tolling rules, under

circumstances where the current confused state of the

law has created real unfairness for Menendez. The question is also of obvious national importance. It embraces

the tolling laws of at least 11 different states, and the erroneous rule applied below will have serious adverse effects on the businesses and individuals whose conduct is

15

likely to be hindered, and opportunities stifled, by the

protectionist impulses keeping these laws on the books.

A. This case cements an acknowledged, widespread conflict among the circuit courts and

state courts of last resort.

The Sixth Circuit’s decision widens and cements an

acknowledged rift among the federal and state courts,

and is opposed by a lopsided majority. The Eighth Circuit,

along with the state supreme courts of Missouri, Nebraska,

and Ohio, have all held that out-of-state tolling statutes like

§ 2305.15 cannot be constitutionally applied to residents

who permanently depart the state after the events giving

rise to suit, but remain amenable to long-arm jurisdiction.

The high courts of three other states (Alaska, Texas, and

South Carolina) have employed narrowing constructions to

avoid these Bendix problems.

1.

Courts holding that application of out-ofstate tolling statutes to departing residents

is unconstitutional.

a. The only circuit court outside the Sixth to directly

confront the question presented is the Eighth, in

Rademeyer v. Farris, 284 F.3d 833 (2002). There the

Eighth Circuit applied Bendix to hold Missouri’s out-ofstate tolling statute, Mo. Rev. Stat. § 506.200, was unconstitutional when applied to claims brought against a man

who moved from Missouri to Florida after buying out his

company’s minority shareholder and selling the company

to someone else. Id. at 836, 838. Drawing upon circuit

precedent, the court determined that the statute forced

upon departing residents the same impermissibly draconian choice it put to other non-residents: “‘[C]hoose between being physically present in the state for the limita-

16

tions period or forfeiting the limitations defense.’” Id. at

838-839 (quoting Bottineau Farmers Elevator v. Woodward-Clyde Consultants, 963 F.2d 1064, 1074 (8th Cir.

1992)). It then held that the burden on these recently

minted “non-residents” was not outweighed by “the

state’s interest in aiding its residents’ efforts to litigate”

against them, when “long-arm service of process was

available,” id. at 839.

b. Three state supreme courts have reached similar

results. In one, the Missouri Supreme Court directly invoked Rademeyer to invalidate the same Missouri statute that was at issue in that case. State ex rel Bloomquist

v. Schneider, 244 S.W.3d 139, 142, 144 (2008) (en banc),

abrogated on other grounds, State ex rel Norfolk S. Ry.

Co. v. Dolan, 512 S.W.3d 41 (Mo. 2017). And it did so under factual circumstances nearly identical to this case,

concerning the timeliness of medical-malpractice claims

raised against a doctor who moved from Missouri to

Kansas. Id. at 140-141. The Eighth Circuit also directly

confronted, and rejected, many of the arguments the

Sixth Circuit found persuasive in this case. The court

dismissed the notion that accidents of timing over a defendant’s departure ought to control Bendix’s operation.

It determined instead that regardless of when the doctor

became a non-resident, Missouri’s out-of-state tolling

statute based tolling “solely on” his “out-of-state residence,” and thus applied to him when he was a nonresident. Id. at 142-143. Thus, the tolling statute “‘impos[es] a greater burden on out-of-state [defendants]

than it does on [resident defendants].’” Ibid. (quoting

Bendix, 486 U.S. at 894) (alteration in original).

The Missouri Supreme Court likewise dismissed the

idea that Bendix contained some silent requirement that

17

the transaction underlying the suit must involve a “traditional interstate business transaction,” Pet. App. 15a, to

trigger Commerce Clause scrutiny, as based on a “cabined interpretation of interstate commerce” that the

“Supreme Court has long since rejected.” 244 S.W.3d at

143. Drawing upon this Court’s decision in Hoke v. United States, 227 U.S. 308, 320 (1913), the court concluded

that “‘Commerce among the states *** consists of intercourse and traffic between their citizens,’” meaning that

Missouri’s out-of-state tolling provision “falls afoul of the

Commerce Clause” by “discourag[ing] and burden[ing]”

residents’ “ability to move from state to state.” Id. at 14243 & n.4 (quoting Hoke, 227 U.S. at 320).

Finally, the Missouri Supreme Court rejected the assertion that out-of-state tolling statutes serve some legitimate purpose merely because it may be “harder to locate and serve an out-of-state resident than it is one who

is in Missouri.” Id. at 143. The court deemed this too little benefit to justify tolling when, under Missouri’s rules

(which mirror Ohio’s), “one need not obtain service in order to toll the statute of limitations. It is tolled by the filing of suit.” Ibid. (citing Ostermueller v. Potter, 868

S.W.2d 110, 111 (Mo. 1993) (en banc)).

c. The Nebraska Supreme Court followed suit in

First Tennessee Bank National Association v. Newham,

859 N.W.2d 569, 574 (2015), invalidating California’s outof-state tolling statute, Cal. Civ. Proc. Code § 351, when

applied to a departing resident. The case concerned an

active-duty servicemember who made a promissory note

to refinance a mortgage on his home in California. Id. at

572. After the refinance, he left California, and active duty, and made a series of moves to Nebraska, North Dakota, Kansas, and Minnesota, after which was sued for non-

18

payment of the note. Ibid. The court joined Bloomquist

in concluding that “a former resident of California” who

permanently left the state is a “nonresident of California” for purposes of determining whether the statute

uniquely burdened non-residents. Id. at 572, 574, 575. It

also joined Bloomquist in deciding that § 351 implicated

interstate commerce concerns by “penaliz[ing] people

who move out of state,” thus imposing “‘restraints on

their movements across state lines.’” Id. at 575 (quoting

Heritage Mkt’g Servs., Inc. v. Chrustawka, 73 Cal.

Rptr.3d 126, 132 (Ct. App. 2008)).

d. The Supreme Court of Ohio also resolved a

dormant Commerce Clause challenge to Ohio Rev. Stat.

§ 2305.15—the same statute at issue here—in a manner

directly contrary to the Sixth. Johnson v. Rhodes, 733

N.E.2d 1132 (2000). There the Court held that § 2305.15

could only be permissibly applied to individuals “who

temporarily leave the state of Ohio for non-business reasons,” not those who permanently leave the state. Id. at

1134. That carve-out for temporary, non-business travel

makes sense. Tolling during temporary travel does not

necessarily impose “impermissible” burdens on the interstate travel, because temporary travelers are not

faced with the “same unpalatable choice” of remaining a

resident “or be[ing] subject to suit in perpetuity.” Dan

Clark Family P’ship v. Miramontes, 122 Cal Rptr.3d 517,

528 (Cal. App. 2011)). But the clear implication from

Johnson is that tolling limitations against permanently

departing residents would impose impermissible burdens.

19

2.

Courts that interpret out-of-state tolling

statutes narrowly to avoid constitutionality problems.

a. Finally, in a trio of cases arising out of car accidents, several state supreme courts interpreted their

out-of-state tolling statutes narrowly to avoid Bendix

questions that would result if they were applied to departing residents. In Kuk v. Nalley, 166 P.3d 47, 55

(2007), the Alaska Supreme Court declined to apply

Alaska Statutes § 09.10.130 to a defendant who left Alaska for a prolonged period “from November 2003 to June

2004,” for “health and surgery reasons,” 166 P.3d at 4950. The court interpreted the tolling statute narrowly so

that defendants would not be considered “absent” when

they were “at all times amenable to service of process,”

thereby confining the statute to circumstances where it

provided some legitimate benefit. id. at 55. The court

recognized that this reading of the statute departed from

both its “plain language,” id. at 51, and its preInternational Shoe reason for being, id. at 55. But it determined this reaching interpretation to be preferable to

the “uncertainty” surrounding the issue of whether, and

to what extent, Bendix would render the statute unconstitutional in those circumstances. Id. at 53-54.

b. The South Carolina and Texas supreme courts engaged in similarly atextual interpretations of their out-ofstate tolling statutes in cases involving departing residents to avoid Bendix concerns. Blyth v. Marcus, 517

S.E.2d 433, 435 (S.C. 1999) (reaffirming precedent interpreting S.C. Code § 15-3-30 to provide that a defendant is

not absent when “amenable to personal service” and subject to the “personal jurisdiction of our courts,” because

anything else might render the statute “unconstitution-

20

al”); Ashley v. Hawkins, 293 S.W.3d 175, 178-179 (Tex.

2009) (interpreting Tex. Civ. Prac. & Rem. Code § 16.063

to provide that a defendant was not “absent” from the

state when substituted service was available through the

state’s long-arm statute). And the Texas Supreme Court

overruled its own previous precedent in doing so. Ashley,

293 S.W.3d at 179 n.4 (overruling Vaughn v. Deitz, 430

S.W.2d 487 (Tex. 1968) in large part because “Deitz’s continuing application may pose constitutional problems”

under Bendix.).

Each of these courts have demonstrated a recognition

that application of out-of-state tolling statutes to departing residents poses constitutional problems. And the

rule-bending leaps they take to avoid those constitutional

concerns—ignoring their plain terms and the historical

imperative for applying the statutes in line with those

plain terms—reveal exactly how serious these courts

deem those concerns to be.

3.

The absence of authority supporting the

Sixth Circuit.

By contrast, no other court of similar stature has

reached the same result as the Sixth Circuit in this case.

None has deemed statutes of limitations to be the mere

locals-only benefits that the Sixth Circuit deems them to

be. And none holds that application of out-of-state tolling

statutes to departing residents has no cognizable interstate commerce impact. Indeed, the only circuit court to

employ even part of the Sixth Circuit’s reasoning is the

Ninth Circuit in Abramson v. Brownstein, 897 F.2d 389

(1990). That case involved a different factual circumstance than this case: application of Cal. Civ. Proc. Code §

351 to a non-resident, not a departing resident. But the

court joined the Sixth Circuit in holding, without analy-

21

sis, that the requisite connection to “interstate commerce” could be satisfied because the transaction at the

core of the case was interstate: a sales transaction between two Californians and a Massachusetts resident. Id.

at 392.

An Oregon intermediate appellate court adopted

Abramson, but converted its holding from one option for

establishing a triggering interstate-commerce connection

into a requirement for doing so. Knappenberger v. DavisStanton, 351 P.3d 54, 56 (Ct. App. 2015). Knappenberger

held that application of an out-of-state tolling provision to

a departing resident only triggers dormant Commerce

Clause scrutiny when “the complaint was based on conduct that itself involved an activity of interstate commerce.” Id. at 56. The Oregon court found this threshold

condition was not met when “the underlying claim” did

not “involve an interstate commerce transaction,” id. at

64—the case involved a dispute between an attorney and

client over unpaid legal fees incurred while the lawyer

lived in Oregon.

The Oregon court was not persuaded that “creating a

‘disincentive[] to travel across state lines’” was sufficient

to trigger scrutiny under the dormant Commerce Clause.

Id. at 65 (internal quotation omitted). It concluded that

such impacts on travel “may very well implicate” some

constitutional rights, such as the right to travel, but disagreed with the argument that “moving across state

lines—in and of itself—constitutes ‘engaging’ in interstate commerce for purposes of invoking the dormant

Commerce Clause.” Ibid. The court expressly acknowledged that this was a departure from cases like

22

Bloomquist, which “arrive at the contrary conclusion.”

Id. at 64-65.4

***

The Sixth Circuit’s opinion thus cements and widens

a long-brewing conflict. That conflict had been recognized both by lower courts, Knappenberger, supra, and

commentators. Walter W. Heiser, Can the Tolling of

Statutes of Limitations Based on the Defendant's Absence from the State Ever Be Consistent with the Commerce Clause?, 76 Mo. L. Rev. 385, 404-408 (2010). And

even before this case, commentators urged that it be resolved. Heiser 414-415. But until this case, that conflict

had largely been confined to the lower courts. Now the

conflict has percolated up to a division between circuit

courts and state supreme courts. And it is fullydeveloped into country-wide spread, directly encompassing the laws of six states. The issues have arisen in dozens of appellate cases since Bendix was decided, and the

view in the courts that have decided the issue has remained unchanged. The petitioner in this case even

sought rehearing on this very question, but the Sixth

Circuit nonetheless denied review. Nothing will be gained

from further percolation. And there is no question that

the issue is dispositive. Ohio residents are subject to bur4

The lower courts of California are divided on this question.

Compare Dan Clark, 122 Cal Rptr.3d at 524 (applying Abramson

and holding that interstate commerce connection existed where conduct underlying the plaintiffs’ claims was an interstate transaction),

with Heritage Marketing, 73 Cal.Rptr.3d at 131 (following Bloomquist’s rule that the impact of an out-of-state tolling statute on a departing resident’s right to travel is sufficient).

23

dens that inhibit their ability to pursue opportunities in

other states that Missourians, Alaskans, Texans, and

Nebraskans do not suffer, based solely on the constitutional standards applied to nearly identical statutes. Indeed, the standards for Ohioans vary based on whether

they are in federal or state court. The time is right to

grant certiorari and resolve these conflicts.

B. The decision below is wrong.

Certiorari is also warranted because the decision below is incorrect. The Sixth Circuit’s stance that out-ofstate tolling statutes like § 2505.13 place no cognizable

burden on interstate commerce when applied to departing residents is fundamentally incompatible with Bendix.

1. Menendez faces the same burdens under § 2305.15

as did the non-resident corporation in Bendix. He suffers

the same loss of a limitations defense, the same potential

for perpetual liability, and similar unpalatable options for

ending it. Indeed, because Menendez is an individual, his

options for stopping tolling under § 2305.15 are worse

than for Bendix’s corporation, because he lacks the option of appointing an agent for service of process to end

the statute’s tolling penalty. The only way for him to end

that penalty is to move back to Ohio. This is not a burden

that Ohio residents ever experience.

2. Yet even if Ohio’s tolling statute imposed only slight

burdens on Menendez’s relocation options, those burdens

are nonetheless intolerable, given that Bendix fatally undermines any notion that these statutes may permissibly

be applied to non-residents who are amenable to longarm service. The panel claims that the statute may still

be of use to plaintiffs who experience difficulty locating a

defendant after his departure, citing thirty-year old

24

precedent from the Equal Protection context, G.D.

Searle & Co. v. Cohn, 445 U.S. 404, 410 (1982). Pet. App.

16a. But any notion that the commercial burdens of outof-state tolling provisions ought to be routinely tolerated

for mere International Shoe-era convenience (rather

than their Pennoyer-era necessity) was rejected in Bendix itself. There, the Court flatly rejected that argument,

and reliance on G.D. Searle, as generally “insufficient to

withstand Commerce Clause scrutiny.” 486 U.S. at 894.

Things only go downhill from there. Any suggestion

that § 2305.15’s burdens are needed to ease plaintiffs’

troubles in locating hard-to-find defendants is belied by

the fact that § 2305.15’s other provisions, which toll limitations whenever a defendant “abscond[s]” or is conceal[ed]” already do that. And they do it in an evenhanded manner that does not uniquely burden interstate

commerce. Moreover, in a time when a simple internet

search can locate virtually anyone on the planet, there is

little reason to believe locating an out-of-state defendant

is any harder than finding an in-state one. Extending

time only for residents that move between states, rather

than, say, residents that move between cities, is completely arbitrary. Retaining out-of-state tolling statutes

as mere time-saving measures for plaintiffs also makes

little sense in states like Ohio where limitations and service are decoupled. There, the action satisfying limitations is the filing of the lawsuit—not effectuating service.

Goolsby, 575 N.E.2d at 802. There is thus no need—in

Ohio, at least—to extend limitations simply to give plaintiffs room to overcome service difficulties.

These days, if Ohio’s tolling statute has any surviving

purpose when applied to departing residents, it is to prevent resident talent and resident dollars from leaving the

25

state. But such protectionist motives doom the statute’s

application here. Accordingly, while past and present

members of the Court have worried about the sometimes

difficult “subjective judgments” or weighing of competing factors required in the Pike calculus, this is not one of

those cases. De Niz Robles, 803 F.3d at 1175–76 (Gorsuch,

J.); Bendix, 486 U.S. at 888, 897 (Scalia, J., concurring).

The proper balancing is clear, as it was already done in

Bendix, and it leads inexorably to one result: § 2305.15

cannot be constitutionally applied in this case.

3. The Sixth Circuit’s reasons for dismissing these

unique burdens are untenable. The lower court claims to

see no unequal imposition of burdens between state residents and those “out-of-state” only because it focuses on

an irrelevant distraction about the timing of Menendez’s

departure relative to the “transaction” involved in his

treatment of Garber. Pet. App. 15a. Nothing about that

transaction triggered § 2305.15’s tolling rule, and thus

the risk of tolling was not a “cost” imposed on Menendez’s treatment of Garber. Ibid.

The statute’s actual triggering point occurred only after he crossed state lines during his permanent move

from Ohio to Florida. That is when § 2305.15’s tolling effect kicked in, that is when Menendez was exposed to

permanent liability, and that is what exposed him to a

unique burden not experienced by residents, triggering

scrutiny under the dormant Commerce Clause. Accordingly, the Sixth Circuit’s focus on timing, and the gossamer thin distinction it seeks to impose between nonresidents and departing residents, does nothing but pull

focus from the true burdens imposed on departing residents under the statute.

26

The lower court’s obsession with the timing of

Menendez’s departure is not only unsustainable as theory, it is unmanageable in practice. Imagine movers had

taken Menendez’s belongings to Florida while he stayed

behind to treat Garber. Would he have been a nonresident then? Or say, as in Newham, 859 N.W.2d at 572,

Menendez had refinanced a house in Ohio, and then defaulted on the loan only after he left. Did he depart before the “transaction”? During? After? And why exactly

should the answers to these questions matter? The operation of the dormant Commerce Clause, and the potential

for perpetual liability, should not turn on such imponderables.

4. The Sixth Circuit’s conclusion that a tolling statute

must impose a “cost” on a “traditional interstate business

transaction” to trigger Commerce Clause scrutiny, or

Bendix’s balancing, is also wrong. Pet. App. 15a.

It is impossible to find such a condition from Bendix,

and the notion is at odds with Bendix’s underlying facts.

The transaction at issue in Bendix was not of the “traditional interstate” variety—any more than the transaction

in this case. In Bendix, the defendant was an Illinois corporation. But the dispute itself was over the delivery and

installation of a boiler that took place entirely within

Ohio. 486 U.S. at 889-891. Here, the dispute is over

Menendez’s treatment of Garber in Ohio, but Garber now

resides in Maryland. Pet. App. 28a,29a. The cases are

mirror images of one another.

Further, nothing in this Court’s other dormant Commerce Clause cases suggests that Congress’s fieldclearing power is limited only to interstate transactions.

It governs interstate commerce. And ever since Gibbons

v. Ogden established the core of Congress’s Commerce

27

authority to encompass “traffic” and “intercourse,” 9

U.S. (Wheat.) 1, 64, 89-90 (1824), it has been understood

that interstate travel falls within Congress’s regulatory

powers. The Court has held that power encompasses the

interstate “movement of persons as well as of property,”

Hoke v. United States, 227 U.S. 308, 320 (1912), whether

“commercial in character,” Edwards, 314 U.S. at 173 n.1,

“intended to earn a profit,” or not, Camps Newfound/Owatonna, Inc. v. Town of Harrison, Me., 520 U.S.

564, 565 (1997). And that power incorporates the authority to regulate movement of a person, or that person’s

movement of others—because “a person may move or be

moved in interstate commerce.” Hoke, 227 U.S. at 283. It

also makes no difference whether the positive aspect of

that power is at issue, empowering Congress to keep the

channels of interstate travel open, Caminetti v. United

States, 242 U.S. 470, 484, 490 (1917), or the negative aspect, defining a zone of protection around interstate

travel on which the States may not intrude. See Edwards, 314 U.S. at 171-173 (invalidating a state law prohibiting the transport of indigent persons into California). So long as it “includes movement of persons through

more States than one,” it is a matter that belongs exclusively to Congress. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256-257 (1964).

The panel mentions only one of these cases—

Edwards—and the grounds the panel offers to distinguish it are unpersuasive. The lower court relied on the

fact that Edwards involved a “complete ban on travel,”

while § 2305.15 is not so absolute. Pet. App. 14a. But

“burdens” on commerce are just as impermissible as

complete bans, so long as they interfere with the “natural

functioning” of the interstate market. McBurney, 569

28

U.S. at 235. More importantly, this distinction cannot explain away the conception of interstate commerce that

Edwards represents—a conception that is irreconcilable

with the panel’s position.

Moreover, the rationale underlying the panel’s decision—that burdens on travel are essentially noneconomical, and therefore less deserving of protection than pure

interstate transactions—is also silly. Restricting residents’ right to leave the state, and relocate to another

state, has a multifaceted commercial impact, sapping

both the traveler and other states of economic benefits

they might have otherwise enjoyed absent the restriction. The panel thus provides no reason to believe

the century-old understanding of the activities protected

under the Commerce Clause prohibits state interference

with a resident’s right to leave the state with any less

force than it bars interference with a non-resident’s right

to conduct business within it.

5. The panel’s disregard of Supreme Court authority

from Bendix to Edwards is unsurprising because the

panel is forthright about the fact that it is not attempting

to fit its decision within established Commerce Clause

boundaries. It is instead calling for those boundaries to

be redrawn. Expressing frustration with the difficulty of

“Pike balancing,” Pet. App. 13a, and evoking the breadth

of Congress’s modern power to regulate commerce,

which frequently “overlap[s]” the states’ power over the

same, id. 7a, the panel calls for a radical retreat for

dormant Commerce Clause jurisprudence, such that the

job of “polic[ing] and correct[ing] discrimination against

multi-state commerce” would fall entirely to Congress,

ibid.

29

The panel seems to see movement in this direction in

cases like McBurney v. Young, 569 U.S. 221 (2013), suggesting that McBurney inverts dormant Commerce

Clause jurisprudence to redefine many ostensible burdens on non-residents as mere benefits for in-state residents. But nothing in McBurney supports that overreaching interpretation, and the case otherwise marks no

such retreat from established dormant Commerce

Clause jurisprudence, which is why the opinion garnered

unanimous support from the Court’s members. Certainly,

nowhere in McBurney or anywhere else has the Supreme Court backed off the foundational principle that

the states, as members of a single union, are not permitted to engage in open commercial warfare with one another—and the field of “interstate commerce,” broadly

understood, is one on which they are prohibited from doing battle. While time may have augmented Congress’s

powers to regulate commerce, that is no reason to allow

the states to renege on that basic bargain with one another.

The idea embraced by the panel that limitations defenses are mere locals-only benefits that States can give

or take at their pleasure, Pet. App. 10a, 12a, also flouts

Bendix. Bendix establishes that limitations defenses are

more than state incentives for residents. They are instead part of the fabric of a state’s commerce—“an integral part of the legal system,” and an integral component

of the “commercial sphere”—that all market participants

fall within: residents, non-residents, and departing residents alike. Bendix, 486 U.S. at 894. Bendix likewise establishes that states cannot remove these defenses on a

whim or withhold them from non-residents on unequal

terms. Rather, they are constitutionally protected rights

30

that “the State may not withdraw on conditions repugnant to the Commerce Clause.” Id. at 893. Taking these

defenses away is therefore an interference “‘with the

natural functioning of the interstate market’” and an impermissible “burden” imposed on that interstate market.

Pet. App. 11a (quoting McBurney, 569 U.S. at 235).

The panel departs from Bendix yet again in demanding that Dr. Menendez produce “evidence” (Pet. App.

12a) that he has suffered a cognizable interstate commercial burden. Bendix required no such evidence, and

no evidence should be required now, because Bendix has

settled that question by holding that stripping nonresidents of limitations protections, and subjecting them

to indefinite liability, does impose “significant” burdens

and cognizable effects on interstate commerce. 486 U.S.

at 891. That burden is the same whether one starts as a

non-resident, or becomes a non-resident after the events

giving rise to suit. And these are not “hypothetical.” Pet.

App. 12a-13a. They have already been recognized in

Bendix to be very real.

Should evidence be necessary, the very fact that

Menendez might be exposed to civil liability in perpetuity

should prove more than sufficient to illustrate that

§ 2305.15’s burdens would weigh heavily on anyone

thinking about leaving the state. Studies confirm that litigation risks powerfully shape businesses’ decisionmaking.5 The potential for making those litigation risks

5

Catherine Tucker, The Effect of Patent Litigation and Patent

Assertion Entities on Entrepreneurial Activity 2 (MIT Sloan Sch. of

Mgmt., Working Paper No. 5095-14, 2014); Colleen Chien, Startups

and Patent Trolls, 17 Stan. Tech. L. Rev. 461, 461-62 (2014); see also

Robin Feldman, Patent Demands and Startup Companies: The View

31

permanent would likely prove an equally powerful motivator. These powerful decision-shaping incentives could

prove especially powerful for doctors, or any professional, given the effect they are likely to have on long-tail

malpractice exposure. Malpractice premiums will likely

rise, and will have to be paid out over a longer period,

when departing professionals and their estates might

face decades of legal exposure after their retirement.

That should be more than enough to demonstrate the

significance of the burden imposed by § 2305.15.

6. Finally, the panel’s decision is also incorrect in ignoring the fact that § 2305.15 discriminates against departing Ohio residents—and therefore against nonresidents—on its face. The same features that make

§ 2305.15’s out-of-state tolling provision unfairly burdensome to departing Ohio residents also provide ample reason to invalidate it as facially discriminatory. Indeed, the

Court in Bendix has already indicated that the statute

could have been considered discriminatory because of its

preference for residents over non-residents—although

the Court did not go so far as to invalidate the law on

that basis. The law subjects residents who leave Ohio to

the same discriminatory treatment as other nonresidents. The fact that the law casts a wide net of disadvantage, and is evenhanded among the various groups

being discriminated against (non-residents and departing

residents alike), does nothing to undermine the fact that

discrimination is occurring within the statute—because

from the Venture Capital Community 49 (UC Hastings Research

Paper No. 75, 2013).

32

both non-residents and those who become non-residents

are treated categorically worse than residents.

The burden that § 2305.15 imposes on departing residents is also not merely “incidental” to some other legitimate purpose. It is virtually all that the provision does

any more. Accordingly, if there has been any weakening

of the standards for Pike balancing, as the panel seems

suggest, that is still not grounds to uphold the law.

C. The Question Presented is important.

Certiorari is also warranted because the question

presented in this case is a recurring one of national significance. Limitations issues and tolling statutes are

ubiquitous in litigation, and the dozens of published legal

opinions on these tolling statutes’ permissible application

to travelers, movers and non-residents stand as a testament to the importance of these issues.

The controversy on these issues also encompasses a

wide geographic scope. Eight states have laws like Ohio’s

that toll limitations regardless of whether the defendant

is amenable to long-arm jurisdiction. See supra at 6. This

case will directly impact the laws in all eight. Three other

states have engaged in narrowing constructions to avoid

confronting the precise constitutional issue in this case,

This case is vitally important to these states too. The controversy at issue here thus impacts more than 20 percent

of the States. That has obvious importance.

The erroneous legal rule applied below is also important to correct because of its potential adverse impacts on individuals and businesses. Permitting statutes

like Ohio’s to toll limitations for claims against departing

residents economically penalizes businesses with indefi-

33

nite liability if they decide to move out of state, and holds

residents considering such a move “hostage until the applicable limitations period expires,” Tesar v. Hallas, 738

F. Supp. at 242, especially if they identify a liabilityproducing event immediately before a potential move.

These adverse effects are not limited to the would-be

traveler. Any time tolling considerations dissuade a business from relocating, that deprives other states and outof-state businesses of economic benefits they would have

otherwise enjoyed. And it can also adversely affect “[t]he

ability of business to recruit out-of-state personnel” if

their “potential employees must forfeit statute of limitations protection” to relocate for a new job. Tesar, 738 F.

Supp. at 242.

The penalty imposed on temporary travelers is almost equally significant, especially for those who habitually travel between states for work—such as salesmen,

pilots, and truckers. That penalty would powerfully

shape the decision-making of many businesspeople who

are considering opportunities in other states, especially

for those that, by their nature, habitually face suit, or

identify a potential event of liability that occurs shortly

before a planned departure.

There is thus room to question whether allowing

statutes like Ohio’s to toll limitations even against temporary travelers. Limiting these statutes’ application to

temporary travelers is certainly better at accommodating business interests than the Sixth Circuit’s absolutist,

commerce-ignoring approach. But policing the various

distinctions involved, between “temporary” travel and

permanent relocation, and “business” versus “personal”

travel, will often be difficult to do. Things can get especially tricky for those who mix pleasure with their busi-

34

ness travel travel—like many truckers and pilots. That

uncertainty will make it difficult for businesses to analyze their legal exposure, and will lead to unfairness

when similar businesses are treated differently. Only

plenary review by the Court can properly wipe the slate

clean, and lead to the imposition of a single set of clear

standards that minimize the adverse consequences for

businesses from these outdated statutes.

D. This case provides a compelling vehicle to

decide these issues.

This case presents an ideal vehicle to consider the

question presented. This case lies at the intersection of

several different strands in dormant Commerce Clause

law. It incorporates a number of themes about interstate

commerce itself, including the connection between interstate travel and interstate commerce. And because it encompasses rules that define differences between temporary travel and permanent relocation, it offers an opportunity to craft a coherent set of rules that will be applicable in all potential applications of these statutes. As the

Sixth Circuit’s approach is the most draconian of the

bunch, it will thus serve as an attractive platform upon

which the Court might wipe the slate clean and start

afresh.

And because the Sixth Circuit’s decision improperly

applied McBurney’s holding on the constitutionality of

locals-only benefits, it presents an opportunity to ensure

that McBurney’s holding remains within its proper

boundaries, and does not actually creep into this Court’s

other dormant Commerce Clause cases in the ways the

Sixth Circuit suggests it does.

35

This case is also provides an attractive factual vehicle

to consider this important question. Dr. Menendez’s story perfectly captures the harshness and arbitrariness of

the Sixth Circuit’s rule, because he made no attempt to

evade service. Garber’s previous failures were the result

of his inability to find someone willing to opine that

Menendez’s behavior was below the standard of care and

his own dilatoriness. Yet Menendez is now subjected to

liability in perpetuity, over treatment of a patient that

ended almost a decade ago, based solely on his decision

to retire from the practice of medicine and relocate his

residence.

Dr. Menendez is also caught within the crosshairs of

the intra-circuit conflict that did not exist until this panel’s decision. Through a change in the law that could not

have been foreseen, Menendez is subject to a new standard. The resulting inequity perfectly demonstrates why

the standards must be realigned. And that provides an

even more compelling reason for the Court to do so.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

Kevin Norchi

J. Carl Cecere

Brendan Richard

Counsel of Record

NORCHI FORBES LLC

CECERE PC

23240 Chagrin Boulevard, 6035 McCommas Blvd.

Suite 210

Dallas, Texas 75206

Cleveland, Ohio 44122

(469) 600-9455

(216) 514-9500

ccecere@cecerepc.com

Counsel for Petitioner

October 29, 2018