Amicus Curiae Brief — Artis v. Dist. of Columbia, 138 S. Ct. 51 (2017) (No. 16-460)

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No. 16-460

IN THE

Supreme Court of the GAnited States

ae STEPHANIE C. ARTIS,

Petitioner,

Vv.

DISTRICT OF COLUMBIA,

Respondent.

ON WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

BRIEF OF THE NATIONAL CONFERENCE OF

STATE LEGISLATURES, COUNCIL OF STATE

GOVERNMENTS, NATIONAL ASSOCIATION OF

COUNTIES, NATIONAL LEAGUE OF

CI U.S. CONFERENCE OF MAYORS,

RNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION, AND

INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION AS AMICI CURIAE IN

SUPPORT OF RESPONDENT

LISA SORONEN KATHARINE M. MAPES*

Executive Director WILLIAM 8S. HUANG

JEFFREY M. BAYNE

STATE & LOCAL

LEGAL CENTER *Counvel of Record

444 North Capitol SPIEGEL & MCDIARMID LLP

Street, N.W. 1875 Eye Street, N.W.

Washington, D.C. 20001 Suite 700

(202) 434-4845 Washington, D.C. 20006

lsoronen@sso.org (202) 879-4000

katharine.mapes@spiegelmcd.com

Counsel for Amici Curiae

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TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE .. rel

yeh st a SUMMARY OF THE

ARGUMENT .. ay ee

I. PETITIONER'S INTERPRETATION |

WOULD IMPOSE SIGNIFICANT

BURDENS ON LOCAL GOVERNMENTS... 6

A. Petitioner’s reading of Section 1367(d)

could result in lengthy extensions of

statutes of limitations. ............................. an

B. These delays will burden local

governments. . a iketooiaiall

Il. PETITIONER’S INTERPRETATION —

FRUSTRATES STATE POLICY

CHOICES... chapenlewt Vie

A. States seein sida ‘ditt ihe

when enacting statutes of limitations... 12

B. States have considered—and responded

to—the problem Sectim over is

Ty SIN, ho ico ccna cesieninakessenccnciis 18

[1l. RESPONDENT'S INTERPRETATION

BEST BALANCES FEDERALISM

CONCERNS... eal OME

A. Respondent's s intangpetetion n fulfills

ngress’s purpose in enacting Section

RSE AR REE 2 A ED 24

B. The presumption against preemption

favors Respondent’s interpretation. .........27

STATUTORY APPENDIX

TABLE OF AUTHORITIES

Page

FEDERAL COURT CASES

Allen v. Greyhound Lines Inc., 656 F.2d 418

RARER RSE ERIE RRS SCE Sen hn eS 12

Altria Grp., Inc. v. Good, 555 U.S. 70 (2008) ........... 27

Bates v. Dow Agrosciences LLC, 544 U.S. 431

ERS ET EE se RR A ere ae PACT ie SOS e ODT 27

Burnett v. N.Y. Cent. R.R. Co.,

| fe ewe ne 19-20, 21

Cannon v. Univ. of Chi., 441 U.S. 677 (1979) ....18-19

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343

Chase Sec. Corp. v. Donaldson, 325 U.S.

304 (1945), reh’g denied, 325 U.S. 892

SEES eR REP I a EFS AiR AER tgp ee ae a OE 13

Jinks v. Richland Cty.,

ie 4, 8, 9, 25, 26, 27

Johnson v. Ry. Express Agency, Inc.,

A a i sce 13, 19

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996)...... 24, 27

Mine Workers v. Gibbs, 383 U.S. 715 (1966)............ 26

Monell v. Dep't of Soc. Servs. of N_Y.,

a aseipeenionniied )

New State Ice Co. v. Liebmann, 285 U.S. 262

(EET RS TERE ESE oo SRE rc 17-18

Raygor v. Regents of Univ. of Minn.,

4 SEA acon 4, 27-28

Retail Clerks v. Schermerhorn, 375 U.S. 96

REE ERIUCS STR TRA nas AAC RES ML 24

Will v. Mich. Dep't of State Police, 491 U.S. 58

PEST LAA a RR a RE See ee a 28

Withey v. Perales, 752 F. Supp. 569 (W.D.N.Y.

1990), affd, 950 F.2d 156 (2d Cir. 1990)............. 11

Wood v. Carpenter, 101 U.S. 135 (1879)................... 12

STATE COURT CASES

Balik v. City of Bayonne, No. A-1448-13, 2016

WL 3351942 2% J. — Ct. Ave. Div.

June 17, 2016)... SRL Les eect eal

Bazakos v. Lewis, 991 N.E.2d 847 (N.Y. 2009) ........ 14

Bleiler v. Bodnar, 479 N.E.2d 230 (N.Y. 1985) ........ 14

Burford v. Sun Oil Co., 18€ S.W.2d 306

I GT i eel 23

City of Los Angeles v. Cty. of Kern, 328 P.3d 56

RR SRE RE care, Sc Ss 27, 28

Craig v. Provo City, 389 P.3d 423, 426

ERE aa SOI Ae ey ne nO ONO 17

East v. Graphic Arts Indus. Tr., 718 A.2d 153

(D.C. 1998), answer conformed to 172 F.3d

919 (D.C. Cir. 1998), answer conformed to

172 F.3d 919 (D.C. Cir. 1998) ......... 0c. cc cece ceceeceuees 20

Est. of Belden v. Brown Cty., 261 P.3d 943

I, CS SE I criss caeceisninsicsbnininintmbeesnnensaneints 9

Eto v. Muranaka, 57 P.3d 413, 427

Ferrari v. Antonacci, 689 A.2d 320, 322—23

(Pa. Super. Ct. 1997), appeal denied, 548

SO SE EES as 23

Gaines v. City of New York, 109 N.E. 594

a cae aabiuniarmninnesenes 19

Gooden v. City of Talledega, 966 So. 2d 232

RRR ence I MS REE ENA AE A aE S)

Grider v. USX Corp., 847 P.2d 779 (Okla.

alr dcaiidaiminnien 22

HCA Health Servs. of Fla., Inc. v. Hillman,

906 So. 2d 1094 (Fla. Dist. Ct. App. 2004),

review denied, 904 So. 2d 430 (Fla. 20085)........... 20

Jackson v. City of Cleveland, No. E2015-

01279-COA-R3-CV, 2016 WL 4443535

(Tenn. Ct. App. Aug. 22, 2016) ....................2..0e-e ee 8

Kolani v. Gluska, 64 Cal. App. 4th 402, 75

es Se OE ME icaicinentecseuseecsnpenenssnmenstvies 27

Liberace v. Conway, 574 N.E.2d 1010 (Mass.

App. Ct. 1991), review denied, 411 Mass.

Re I, SEED cncicesdiieciundéiniosecisevscietbeninennesntanens 22

Nowak v. St. Rita High Sch., 757 N.E.2d 471

I IITs scso cece ial lenacle adabiassieahamiienle cdeuainamibauepabieasuds 8

Okoro v. City of Oakland, 48 Cal. Rptr. 3d 260

Speen; MLL, TIE dadinscnavienavdiunlaniatmenmntiannienaeomeded )

Osborne v. AK Steel/Armco Steel Co., 775

N.E.2d 488 (Ohio 2OOR).............cccccscrsescccssssceescoees 22

Pashley v. Pac. Elec. Ry. Co., 153 P.2d 325

STI MITE Uesttanlincis con inns didastbsic abisangdibaddadatsamenteaddmmnasnaaad 12

Peacock v. Cty. of Orange, No. G040617, 2009

WL 3184564 (Cal. Ct. App. Oct. 6, 2009).............. 8

Rader v. Greenberg Traurig, LLP, 352 P.3d

ee es i s BIE acabeviccvscindetncctscicecionsesent 20

Salazar v. City of Oklaoma City, 976 P.2d

SE EI cdccdunicaerdetnaienneniamsninentanstaniiensseupeinel 9

Sneed v. City of Red Bank, 459 S.W.3d 17

Na REESE See P NE AEH ISS eo ee a 17

Tallmann v. City of Elizabethtown, No. 2006-

CA-002542-MR, 2007 WL 3227599

Gy Gas As GUIS Bs BID vccincecsesecsecscnescecscocenssssess )

Thomas v. Cty. of Camden, 902 A.2d 327

(N.J. Super. Ct. App. Div. 2006)...................0000 cee 8

Travis v. Cty. of Santa Cruz, 94 P.2d 538 (Cal.

Turner v. Kight, 957 A.2d 984 (Md. 2008),

cert. denied, 556 U.S. 1181 (2009).................00008. 27

Vale v. Ryan, 809 S.W.2d 324

I 22-23

Williams v. City of Jacksonville Police Dep't,

599 S.E.2d 422 (N.C. Ct. App. 2004)... 9

Willis v. Shelby Cty., No. W2008-01487-COA-

R3-CV, W2008-01558-COA-R3-CV, 2009

WL 1579248 (Tenn. Ct. App. June 8, 2009)..........9

FEDERAL STATUTES AND COURT RULES

RE Ee I iicissinninicicsapiieinnsinebineniniiensiinctsiens 23

I i ssusasdmespebanmiesans passim

ee 20

Se SI i daeisattscestentadnaniopiidneicherstiavohepensuiakeonionda 8,9

A ee Se I oe csce ssiccsnncntnctoyesesssenscentunszessne 7

SE APE iiccanpabiateeketeiabnisiinicetusacsanicsesidécseibesaacemanni 1

STATE STATUTES

IS Ble Ce OF IIE sciccccncexcnssdcnctevsereusaccvivacesececes 16

Cs re ID, Ce GIG ..scccccececcccceccecsccococconecess 16

Se ee Sy CID Oe ID i pe. cecscnescnceccnssuscnccesecsitnise 16

a Ms ME, GI OF ICE chsvinnesiscsoicnnsvccsndenssscccarans 16

vill

Cs I, Th IO I icacccncsccecuccestecesesesseununs 22

Conn. Gen. Stat. Ann. § 52-592(4)....sce:.-cssssseseeesnee 20

I eel a deiaan emeaueinadens 17

Pin. Beat. Asm. § TOS. BEGIe) 0.05.00... .ssrcececcessessseccenes 16

BE, Se, Se SNH PE Bccesacecessscicccoansenenscessincsessess 21

Se I, Be Bl reendceseccinccseces cs eccacenesensecese 17

Ky. Rev. Stat. Ann. § 413.270(2)...........00.-csssscecssveesee 22

Bile. Beew. Beet. Ame. GE. 146, SB BEG... ccccccsccccsecsscecccece 16

Neb. Rev. Stat. Ann. § 25-201.01................-ccccccseseses 20

ey iy as SUI, Oe SI rcccncdeccscssnscanccnseecsaceons 16

Se es PI, OE 0B MP etedsinseccnnscssssatsscboctanenes 20

es I, Rs GROIN SE GP EMO Y enccccnscisccsscosciecooneccsese 16

a A IN I cessor scleta cs imma panes sviosuammenienblatieds 13

ee I sisi ciciasinaticeenbskconseunanesbiondbuionsiindta 14

ns oi nasctsencliduemuiiventedsnesisienei 15

a I isn exs ccc cachaninndnesaemiscbanabipunaueinnal 15

Ee Sle NE A IEE bchevesntasttccsoeetiecnceshesmsssueueianiustan 13

a oN tt IED trenasncoginisssnmnsecnennnabbeannnonenaneoonsl 14

Gs I. GOR. IT wsce. cee sicesssecssansccconespenvessenscesveces 21

vill

42 Pa. Stat. and Cons. Stat. Ann. § 5103(b)............. 23

Se ees NII OI isc camnentenpicinbieninonsitniinnbuioan 16

ey Ce BARI, GB Ri cccccccnccccnccncesscecsuscsnias We See 14

rk SE INE Oe TEEN oicccnntccsuvicncsscovsncdcesetves 16

es es BE Fe rr stctarinnceseseervessesessovsesiuees 14

Tenn. Code. Ann. § 28-3-104(a)(1)(A) .................0.-24. 14

Utah Code Ann. § 78B-2-304 .0............-cccccseecsseceeeeees 17

We Be PMs BIR. EA, © Ba tivccccsceccccccsscccssesesesacesness 14

Wroye, Beet. Asme. § 1-B-1GBa) ..ccccccsccscsssoccccscccscsceseccees 14

i Ns Bl IO fo iaiis nncccccciinnccmiinecacsnsioes 17

OTHER AUTHORITIES

English Limitations Act of 1623 (21 Jac. 1, c.

| i ER ERA Ee 19

H.R. Rep. No. 101-734 (1990), reprinted in

ee ee i acitcnciicesnscoctincesenascnmin 24-25

Howard Kensinger, Fiscal note: Legislative

Fiscal Analyst Estimate (Jan. 7, 2000),

http://www.nebraskalegislature.gov/FloorD

CO eT BIE oncnsccsncccnssncescescssecevesessces 21

Memorandum from the N.Y. State Assembly

in Support of Bill No. AO9568A (2016),

http://nyassembly.gov/leg/?default_fld=&leg

video=&bn=A09568&term=2015&Summa

ry=Y&Actions=Y&Memo=Y&Text=Y ..............

Mem. of State Exec. Dep’t, 1975 N.Y. Sess.

i a coenbninccnes

U.S. Census Bureau, 2012 Census of Govern-

ments. Employment,

https://www.census.gov/govs/apes/historical

_data_2012.html (last visited July 24,

U.S. Bureau of Labor Statistics, Current Em-

ployment Statistics-CES (National),

http://www.bls.gov/ces/ (last visited Aug 10,

TE adiatiiniseiininninkieninantsinhintninaiadalantineessiaetein

1 Horace Gay Wood et al., A Treatise on the Limita-

tion of Actions at Law and in Equity at 8-9 (4th

INTEREST OF AMICI CURIAE'

Amici are organizations that represent the in-

terests of state and local governments.

The interests of amici in this proceeding are

twofold. First, they represent state governments that

pass the statutes of limitations that will be preempt-

ed by Petitioner’s interpretation of 28 U.S.C.

§ 1367(d). States have a fundamental interest in en-

forcing their laws—and, as a result, the statutes of

limitations that apply to state claims are matters of

significant and historically-grounded interest to

states. Second, amici organizations represent local

governments who are defendants in the lawsuits sub-

ject to the statutes of limitations at issue in this pro-

ceeding. Those governments incur greater costs and

burdens when statutes of limitations periods are

functionally extended.

Amici organizations are:

The National Conference of State Legislatures

(“NCSL”) is a bipartisan organization that serves the

legislators and staffs of the nation’s 50 states, its

commonwealths, and its territories. NCSL provides

research, technical assistance, and opportunities for

policymakers to exchange ideas on the most pressing

state issues. NCSL advocates for the interests of

state governments before Congress and federal agen-

cies and regularly submits amicus briefs to this

! Pursuant to Supreme Court Rule 37.6, counsel for amici rep-

resent that they authored this brief in its entirety and that

none of the parties or their counsel, nor any other person or en-

tity other than amici or its counsel, made a monetary contribu-

tion intended to fund the preparation or submission of this

brief. Petitioner and Respondent have consented to the filing of

this brief. Letters reflecting such consent have been filed with

the Clerk.

Court in cases, like this one, that raise issues of vital

state concern.

The Council of State Governments (“CSG”) is

the nation’s only organization serving all three

branches of state government. CSG is a region-based

forum that fosters the exchange of insights and ideas

to help state officials shape public policy. This offers

unparalleled regional, national, and international

opportunities to network, develop leaders, collabo-

rate, and create problem-solving partnerships.

The National Association of Counties (“NACo”)

is the only national organization that represents

county governments in the United States. Founded

in 1935, NACo provides essential services to the na-

tion’s 3,069 counties through advocacy, education,

and research.

The National League of Cities (“NLC”) is dedi-

cated to helping city leaders build better communi-

ties. NLC is a resource and advocate for 19,000 cit-

ies, towns, and villages, representing more than 218

million Americans.

The U.S. Conference of Mayors (“USCM”),

founded in 1932, is the official nonpartisan organiza-

tion of all United States cities with a population of

more than 30,000 people, which includes over 1,400

cities at present. Each city is represented in USCM

by its chief elected official, the mayor.

The International City/County Management

Association (“ICMA”) is a non-profit professional and

educational organization consisting of more than

11,000 appointed chief executives and assistants

serving cities, counties, towns, and regional entities.

ICMA’s mission is to create excellence in local gov-

ernance by advocating and developing the profes-

sional management of local governments throughout

the world.

The International Municipal Lawyers Associa-

tion (“IMLA”) has been an advocate and resource for

local government attorneys since 1935. Owned solely

by its more than 2,500 members, IMLA serves as an

international clearinghouse for legal information and

cooperation on municipal legal matters. IMLA’s mis-

sion is to advance the responsible development of

municipal law through education and advocacy by

providing the collective viewpoint of local govern-

ments around the country on legal issues before the

Supreme Court of the United States, the United

States Courts of Appeals, and state supreme and ap-

pellate courts.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

This case concerns the proper interpretation of

28 U.S.C. § 1367(d), a provision of the Judicial Im-

provement Act of 1990. Section 1367(d) provides

that:

The period of limitations for any claim

asserted under subsection (a), and for

any other claim in the same action that

is voluntarily dismissed at the same

time as or after the dismissal of the

claim under subsection (a), shall be

tolled while the claim is pending and for

a period of 30 days after it is dismissed

unless State law provides for a longer

tolling period.

Petitioner and Respondent agree that Section

1367(d) prevents the loss of state-law claims to stat-

utes of limitations when a federal court declines to

exercise supplemental jurisdiction over those

state-law claims. They disagree, however, on how

Section 1367(d) accomplishes this purpose.

For the reasons explained in Respondent’s

brief and herein, Section 1367(d) prevents the loss of

dismissed state-law claims to statutes of limitations

by providing the litigant with 30 days to re-file them

in state court. This comports with the text of the

statute, Congressional intent, and this Court’s juris-

prudence. The Court should thus adopt this interpre-

tation and affirm the judgment of the District of Co-

lumbia Court of Appeals.

Amici submit this brief to underscore two

points. First, Petitioner’s interpretation is not simply

incorrect; the burdens it creates are of real practical]

consequence. By stopping the clock on the state stat-

ute of limitations period while the federal court case

is pending and restarting it 30 days after dismissal,

Petitioner implements in state courts a federal toll-

ing scheme that burdens already overstretched pub-

lic entities. Local governments are regularly defend-

ants in cases where plaintiffs bring both federal and

state-law claims, and are subject to the tolling period

provided for in Section 1367(d). Jinks v. Richland

Cty., 538 U.S. 456, 466 (2003) (citing Raygor v. Re-

gents of Univ. of Minn., 534 U.S. 533 (2002)), re-

manded to 585 S.E.2d 281 (S.C. 2003). The longer

local governments remain subject to suit, and the

more that period of time varies case-by-case, the

greater the costs and burdens on resource con-

strained local governments. Many local governments

lack in-house counsel] to handle protracted lawsuits.

Even those that have in-house counsel must bear the

increased cost of litigating old, potentially stale

claims: costs associated with record retention and

the turnover of counsel, witnesses, and others with

familiarity of the case. As a result, older cases are

disproportionately expensive to litigate and impose

steep opportunity costs on local governments that, as

a result, cannot therefore devote their time to newer,

less-stale cases.

Second, Petitioner’s interpretation unneces-

sarily intrudes on and supplants both state statutes

of limitations and state-law tolling periods. As this

Court has recognized, state statutes of limitations

schemes reflect careful balancing of competing policy

concerns that are the province of state legislatures.

But Petitioner’s interpretation would extend those

periods, potentially for years, distorting local prefer-

ences, values, and compromises. Moreover, most

states already have state law tolling provisions that,

consistent with centuries of practice, provide plain-

tiffs with longer than 30 days to re-file state-law

claims in state court if a federal court declines to ex-

ercise supplemental! jurisdiction over them. Petition-

er’s interpretation of Section 1367(d) would—

contrary to the statute’s express recognition of these

“longer tolling period[s]”—displace these tolling stat-

utes as well.

Ultimately, while Congress may displace

state-law where it makes its intentions clear, an in-

tent to do so in the manner argued by Petitioner—

the touchstone of this Court’s preemption jurispru-

dence—is nowhere present here. Congress’s narrow

purpose in enacting Section 1367(d) was to prevent

the loss of state-law claims to statutes of limitations

during the pendency of federal court proceedings,

and to assure that disappointed federal litigants al-

ways have at least 30 days to re-file any state-law

claims that the federal court declines to hear. This

purpose, which Petitioner does not dispute, is critical

to the proper interpretation of Section 1367(d). Re-

spondent’s interpretation would preempt state law

only when necessary to achieve this specific purpose,

whereas Petitioner’s interpretation would preempt

state law in far broader circumstances and to a far

greater extent. Nothing in the text or legislative his-

tory indicates any intention of Congress to imple-

ment that broader preemption.

When faced with a preemption clause that is

susceptible to more than one plausible interpreta-

tion, this Court applies a presumption against

preemption to support the narrower interpretation.

Application of that principle is particularly appropri-

ate here, where Petitioner’s interpretation is qualita-

tively different from Respondent’s and would alter

all state statutes of limitations, not just those that

would have expired during the pendency of federal

proceedings. Likewise, it would displace even gener-

ous state-law tolling provisions. Thus, even if Section

1367(d) were susceptible to Petitioner’s reading, the

presumption against preemption requires its rejec-

tion.

The judgment of the District of Columbia

Court of Appeals should be affirmed.

ARGUMENT

I. PETITIONER’S INTERPRETATION WOULD

IMPOSE SIGNIFICANT BURDENS ON LO-

CAL GOVERNMENTS.

A. Petitioner’s reading of Section 1367(d)

could result in lengthy extensions of

state statutes of limitations.

Petitioner's approach could result in unrea-

sonably lengthy delays between the federal court’s

decision to decline to exercise supplemental jurisdic-

tion and the time that the plaintiff must re-file in

state court. This is particularly true when the plain-

tiff files her state-law claims in federal court well be-

fore the end of the state-law limitations period, and

where the federal court proceedings are lengthy.

In some situations, as in the instant case, this

is almost guaranteed to occur—for instance, federal

Title VII actions must be brought within 90 days af-

ter the Equal Opportunity Employment Commission

issues a “right to sue” letter, 42 U.S.C. § 2000e-

5(f)(1), at which time there will typically be signifi-

cant time remaining on the limitations period for any

related state-law claims.

It is almost certain to happen in other situa-

tions as well. For example, for a state-law claim with

a statute of limitations of five years, some plaintiffs

will bring their federal and state claims to federal

court within two years. If the federal court takes

three years to dispose of the case—by no means an

unusual amount of time—under Respondent’s inter-

pretation, the statute of limitations for the state-law

claims will have been extended to a full eight years

plus 30 days: the two years the plaintiff originally

took to file, the three years the case was pending in

district court, plus the remaining three years on the

original statute of limitations and the 30 days pro-

vided for by Section 1367(d).

These significant extensions would occur un-

der Petitioner’s interpretation even in situations in

which the plaintiff was nowhere near losing her abil-

ity to re-file her claim in state court. Again consider

a situation involving a state claim with a statute of

limitations of five years and a plaintiff who brings

this claim, along with a federal-law claim, two years

after the cause of action accrues. But in this in-

stance, the federal court dismisses the federal claim

and declines to exercise supplemental jurisdiction

over the state-law claim after just one year. Petition-

er’s interpretation would add an additional year

(plus 30 days) to the two years still remaining on the

state statute of limitations—an entirely unnecessary

delay and displacement of state law.

B. These delays will burden local govern-

ments.

Although Section 1367(d) does not apply to

claims filed in federal court against nonconsenting

states that are dismissed on Eleventh Amendment

grounds, local governments are afforded no such pro-

tection. Jinks, 538 U.S. at 466. As a result, the out-

come of this litigation will influence the operations of

local governments across the country.

1. Local governments are frequent defendants

in lawsuits containing both state and federal claims.

First, local governments, which employ nearly 10% of

nonfarm workers,” are often sued under both federal

and state law in their capacity as employers.® Sec-

ond, since 42 U.S.C. § 1983 creates a separate federal

cause of action against state and local governments

2 U.S. Bureau of Labor Statistics, Current Employment Statis-

tics—CES (National), http://www.bls.gov/ces/ (follow “CES Ta-

bles and Charts” hyperlink; scroll down to “Tables from Em-

ployment and Earnings” section; view tb].B-1a) (last visited

Aug. 10, 2017). :

3 See, e.g., Nowak v. St. Rita High Sch., 757 N.E.2d 471 (Il.

2001); Thomas v. Cty. of Camden, 902 A.2d 327 (N.J. Super. Ct.

App. Div. 2006); Balik v. City of Bayonne, No. A-1448-13, 2016

WL 3351942 (N.J. Super. Ct. App. Div. June 17, 2016); Jackson

v. City of Cleveland, No. E2015-01279-COA-R3-CV, 2016 WL

4443535 (Tenn. Ct. App. Aug. 22, 2016); Peacock v. Cty. of Or-

ange, No. G040617, 2009 WL 3184564 (Cal. Ct. App. Oct. 6,

2009).

acting pursuant to state law,‘ local governments are

regularly sued under that statute and state law con-

currently5—a burden that is unique to governmental

entities. In fact, nearly one-third of cases citing Sec-

tion 1367(d) involve suits against state or local gov-

ernments—or 521 out of 1,659 total cases.®

2. These suits impose palpable burdens on re-

source-strapped local governments. As an initial

matter, many local governments do not have in-

house counsel to handle law suits that are protracted

over a long period of time. According to data from the

2012 Census of Governments, over 60% of municipal-

ities have no full-time employees serving legal func-

tions; and fewer than 25% have more than one such

employee.? Even local governments that have in-

4 See Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658 (1978)

(holding that municipalities are included within the term “per-

son” to which 42 U.S.C. § 1983 applies).

5 See, e.g., Salazar v. City of Okla. City, 976 P.2d 1056 (Okla.

1999); Jinks v. Richland Cty., 538 U.S. 456, remanded to 585

S.E.2d 281 (S.C. 2003); Williams v. City of Jacksonville Police

Dep't, 599 S.E.2d 422 (N.C. Ct. App. 2004); Okoro v. City of

Oakland, 48 Cal. Rptr. 3d 260 (Cal. Ct. App. 2006); Gooden v.

City of Talledega, 966 So. 2d 232 (Ala. 2007); Est. of Belden v.

Brown Cty., 261 P.3d 943 (Kan. Ct. App. 2011); Willis v. Shelby

Cty., No. W2008-01487-COA-R3-CV, W2008-01558-COA-R3-CV,

2009 WL 1579248 (Tenn. Ct. App. June 8, 2009); Tallmann v.

City of Elizabethtown, No. 2006-CA-002542-MR, 2007 WL

3227599 (Ky. Ct. App. Nov. 2, 2007).

® As of June 14, 2017, using a report generated by LexisNexis.

’ U.S. Census Bureau, 2012 Census of Governments: Employ-

ment,

https://www.census.gov/govs/apes/historical_data_2012.htm]

(follow “All Downloadable Data” hyperlink; then access “Indi-

vidual Unit File” directory for the data files; data on the num-

ber of Judicial and Legal employees (Data Function Code 025)

of municipalities (Summary Total Code 2) are contained in file

12cempst.dat) (last visited July 24, 2017).

house counsel must deal with turnover—of counsel,

of witnesses, and of those who have institutional

knowledge of the facts underlying the suit—when

there are long delays in re-filing state-law claims in

state court.

Record retention policies, which are keyed to

state law and already account for state-law limita-

tions and tolling periods, would also require revision.

Petitioner’s interpretation of Section 1367(d) would

require these policies to take into account suits that

could reappear from many years previous.® Long de-

lays between dismissal from federal court and re-

filing in state court may also increase the cost to

public entities of obtaining insurance.

The burdens associated with such delays

translate into more public money spent on litigation.

As one district court has explained:

A statute of limitations naturally re-

sults in decreased expenditures both be-

cause it reduces the number of claims

brought, by weeding out those that are

time-barred, and because it lessens the

fiscal burden of maintaining adminis-

trative records indefinitely.

8 As explained in more detail below, under Petitioner's interpre-

tation of Section 1367(d), the amount of time for a plaintiff to

re-file in state court will vary case-by-case. Under Respondent’s

interpretation, however, the time period (assuming that the

state law statute of limitations otherwise would have expired

while the claim was pending in federal court) will either be 30

days or the longer period provided by state law, which is nearly

always a fixed length of time after dismissal by the federal

court.

Withey v. Perales, 752 F. Supp. 569, 572 (W.D.N-Y.

1990), aff'd, 950 F.2d 156 (2d Cir. 1990). Local gov-

ernments, which are resource-constrained and tax-

revenue dependent, are inherently disadvantaged by

extensions of state statute of limitations periods. And

there is an opportunity cost to forcing local govern-

ments to litigate stale claims, as it leaves them with

fewer resources to devote to more timely suits.

In short, Petitioner's reading of Section

1367(d) is not bloodless—it imposes real costs on de-

fendants, particularly governmental defendants that

already suffer from resource limitations. As dis-

cussed below, it also frustrates state policies that, in

some cases, are meant specifically to mitigate the

costs that long and uncertain limitations periods im-

pose on local governments.

II. PETITIONER’S INTERPRETATION FRUS-

TRATES STATE POLICY CHOICES.

This Court has long recognized that whenever

states craft statutes of limitations and related tolling

provisions, they balance a range of fundamental and

competing interests, from enabling plaintiffs to bring

meritorious claims to protecting both defendants and

courts from the burdens of litigating stale claims.

By extending the state statute of limitations

period by the time the case was pending in federal

court plus 30 days, and supplanting state-law tolling

provisions, Petitioner’s interpretation of Section

1367(d) intrudes unnecessarily on states’ balancing

of these interests and, ultimately, would do so un-

necessarily. Respondent’s interpretation, on the oth-

er hand, affects state policies only as necessary to al-

low plaintiffs to re-file in state court and only where

the state itself has not “provide[d] for a longer tolling

period.”

A. States make considered policy choices

when enacting statutes of limitations.

When states pass statutes of limitations, they

engage in a calculated and deliberative balancing

act, one that often varies considerably depending on

the specific situation state lawmakers are examin-

ing. As a general matter, and as this Court has stat-

ed:

Statutes of limitation are vital to the

welfare of society and are favored in the

law. They are found and approved in all

systems of enlightened jurisprudence.

They promote repose by giving security

and stability to human affairs. An im-

portant public policy lies at their foun-

dation. They stimulate to activity and

punish negligence. While time is con-

stantly destroying the evidence of

rights, they supply its place by a pre-

sumption which renders proof unneces-

sary.

Wood v. Carpenter, 101 U.S. 135, 139 (1879).

Statutes of limitations are meant “to prevent

potential plaintiffs from neglecting suits, and to sup-

press stale and fraudulent claims after the facts con-

cerning them have become obscured by a lapse of

time and memory.” Allen v. Greyhound Lines Inc.,

656 F.2d 418, 422 (9th Cir. 1981). See also Pashley v.

Pac. Elec. Ry. Co., 153 P.2d 325, 326 (Cal. 1944) (ex-

plaining the “legislative policy in prescribing a period

of limitation for the commencement of actions” and

that “[t]he underlying purpose of statutes of limita-

tion is to prevent the unexpected enforcement of

stale claims concerning which persons interested

have been thrown off their guard by want of prosecu-

tion.””) (quoting 1 Horace Gay Wood et al., A Treatise

on the Limitation of Actions at Law and in Equity at

8-9 (4th ed. 1916)). However, policymakers also rec-

ognize countervailing concerns, such as the prefer-

ence for adjudicating matters on their merits and the

desire not to dismiss valid claims.

Accordingly, this Court has acknowledged that

“the length of the period allowed for instituting suit

inevitably reflects a value judgment concerning the

point at which the interests in favor of protecting

valid claims are outweighed by the interests in pro-

hibiting the prosecution of stale ones.” Johnson uv.

Ry. Express Agency, Inc., 421 U.S. 454, 463-64

(1975). Statutes of limitations thus “represent a pub-

lic policy about the privilege to litigate.” Chase Sec.

Corp. v. Donaldson, 325 U.S. 304, 314 (1945), reh’g

denied, 325 U.S. 892 (1945). For state-law claims,

state legislatures are responsible for making these

value judgments and policy decisions.

Given the complex and often competing con-

siderations behind statutes of limitations, it is not

surprising that states have implemented specific and

varied provisions that reflect different policy prefer-

ences and local contexts. Within a state, the statutes

of limitations for different causes of action range

considerably. For example, New York provides a

20-year statute of limitations to enforce any tempo-

rary order, permanent order, or judgment which

awards support, alimony, or maintenance, compared

with one year for an action upon an arbitration

award. N.Y. C.P.L.R. §§ 211(e), 215(5). While New

York provides four years for an action on a residen-

tial rent overcharge, it has a one-year statute of limi-

tations for an action by a tenant against a landlord

for unlawful retaliation. N.Y. C.P.L.R.

§§ 213-a, 215(7).

Statutes of limitations for similar causes of ac-

tion vary widely among the states. For example,

Tennessee provides a six-month statute of limita-

tions for slander and one year for libel, whereas

Vermont provides three years for each of these caus-

es of action. Tenn. Code. Ann.

§§ 28-3-103, 28-3-104(a)(1)(A); Vt. Stat Ann. tit. 12,

§ 512(3). South Carolina provides a three-year stat-

ute of limitations for an action upon a contract, ex-

press or implied, whereas Wyoming provides ten

years for a contract in writing and eight years for a

contract not in writing, either express or implied.

S.C. Code Ann. § 15-3-530; Wyo. Stat. Ann.

§ 1-3-105(a).

Each statute of limitations represents a delib-

erate policy choice, and state legislatures frequently

revise these statutes to respond to new information

and changes in policy preferences. For example, New

York created a statute of limitations for certain

forms of professional malpractice that is shorter than

the one for ordinary personal injury, which New

York’s highest court described as part of a response

“to a crisis in the medical profession posed by the

withdrawal and threatened withdrawal of insurance

companies from the malpractice insurance market.”

Bazakos v. Lewis, 991 N.E.2d 847, 849 (N.Y. 2009)

(quoting Bleiler v. Bodnar, 479 N.E.2d 230, 232

(N.Y. 1985)). The legislature was specific: the pur-

pose of the legislation was to enable “health care

providers to get malpractice insurance at reasonable

rates.” Id. at 635 (quoting Mem. of State Exec. Dep’t,

1975 N.Y. Sess. Laws 1601, 1601—02.

State legislatures have also used statutes of

limitations to promote certainty for potential defend-

ants. For instance, California has adopted a 90-day

statute of limitations to challenge certain zoning de-

cisions. The California Supreme Court, quoting the

statute, summarized its purpose as follows: “to pro-

vide certainty for property owners and local govern-

ments regarding decisions made pursuant to this di-

vision’. .. and thus to alleviate the ‘chilling effect on

the confidence with which property owners and local

governments can proceed with projects’ .. . created

by potential legal challenges to local planning and

zoning decisions.” Travis v. Cty. of Santa Cruz, 94

P.2d 538, 541 (Cal. 2004) (internal citation omitted),

remanded to 2004 WL 2801083 (Cal. Ct. App.

Dec. 6, 2004), appealed after remand, 2007 WL

294132 (Cal. Ct. App. Feb. 2, 2007).

In other instances, states have lengthened

statutes of limitations in an effort to ensure that

plaintiffs have an opportunity to have their claims

heard on the merits. For example, New York recently

added Section 214-f to its Civil Practice Law and

Rules, which allows plaintiffs to sue for personal in-

jury caused by contact with substances in a Super-

fund site either (1) within the time period already

provided for in Section 214-c or (2) within three years

of the designation of an area as a Superfund site,

whichever is later. N.Y. C.P.L.R. § 214-f. The bill’s

legislative history explained that it was prompted by

“(t]he recent discovery of water contamination in

Hoosick Falls, New York and Flint, Michigan” and

the desire to address the possibility that “the statute

of limitations to bring a personal injury action has

long since run before any contamination was ever

discovered.”? Similarly, California has created grace

® Memorandum from the N.Y. State Assembly in Support of Bill

No. A09568A (2016),

period provisions that apply to civil actions brought

by Holocaust victims,!° braceros,!! and victims of the

terrorist attacks of September 11, 2001,!2 among

others, in order to address the particular issues fac-

ing these groups regarding statutes of limitations.

Lastly, in crafting their systems of statutes of

limitations, states give particular consideration to

the burden that long limitations periods can impose

on state and local governments. Numerous states

have adopted statutes of limitations that apply spe-

cifically to state and loca] governments and provide

for a shorter time period to bring suits against those

entities.'* Other states protect themselves with a no-

http://nyassembly.gow/leg/?default_fid=&leg_video=&bn=A0956

8&term=2015&Summary~Y &Actions=Y & Memo=Y&Text=yY.

0 Cal. Civ. Proc. Code § 354.5

1 Cal. Civ. Proc. Code § 354.7.

12 Cal. Civ. Proc. Code § 340.10.

138 Ariz. Rev. Stat. § 12-821 (“[a]ll actions against any public en-

tity or public employee shall be brought within one vear after

the cause of action accrues and not afterward”): Fla. Stat. Ann.

§ 768.28(6)(a) (“[a]n action may not be instituted on a claim

against the state... unless the claimant presents the claim in

writing ... within 3 vears after such claim accrues”); Me. Rev.

Stat. Ann. tit. 14, § 8110 (“le]verv claim against a governmental

entity or its employees permitted under this chapter is forever

barred ... unless an action .. . is begun within 2 years after the

cause of action accrues”); Neb. Rev. Stat. Ann. § 25-218 (“[e]very

claim .. . against the state shall be forever barred unless action

is brought thereon within two years after the claim arose”);

N.H. Rev. Stat. Ann. § 507-B:7 (“[nJo actions shall be main-

tained against the governmental unit under this chapter unless

the same is commenced within 3 years after the time of injury

or damage”); 9 R.I. Gen. Laws § 9-1-25 (“action shall be insti-

tuted within three (3) years from the effective date of the spe-

cial act or within three (3) years of the accrual of any claim of

tort”); S.D. Codified Laws § 21-32-2 (“[a]ction on any claim on

contract or tort against the state shall be commenced within

tice requirement, by which the would-be plaintiff

must supply notice to the state governmental entity

within a specified period of time, usually less than a

year.!4

These are just a few examples of the ways in

which state legislatures specifically craft statutes of

limitations to address constantly evolving policy con-

cerns and value judgments. The variation in statutes

of limitations among states and over time demon-

strates both the complexity of the states’ analyses

and the benefit of a federalist system. Cf. New State

—_—_—_—_—_—_—__——

one year after same has arisen”); Utah Code Ann. § 78B-2-304

(“[aJn action may be brought within two years... in causes of

action against the state and its employees, for injury to the per-

sonal rights of another if not otherwise provided by state or fed-

eral law.”); Wyo. Stat. Ann. § 1-39-114 (“actions against a gov-

ernmental entity ... shall be forever barred unless commenced

within one (1) year after the date the claim is filed... . ”).

In addition, the courts of at least two states have ruled

that certain statute of limitations tolling provisions only apply

to claims against state and local governments if the relevant

state law includes an express statement to that effect. Craig v.

Provo City, 389 P.3d 423, 426 (Utah 2016) (holding that Utah’s

Governmental Immunity Act “speaks comprehensively on the

procedure and requisite timing of a claim filed against the gov-

ernment, in a manner foreclosing the applicability of the Sav-

ings Statute”); Sneed v. City of Red Bank, 459 S.W.3d 17, 28

(Tenn. 2014) (noting the long line of Tennessee decisions hold-

ing that “general saving statutes do not apply to suits against

the State or other governmental entities unless the statute

waiving sovereign immunity expressly permits their applica-

tion.”),

4 D.C. Code § 12-309 (notice requirement of six months); Ind.

Code Ann. § 34-13-3-6 (notice requirement of 270 days). While

these notice requirements inform potential defendants of the

possible initiation of a lawsuit, they do not inform them of how

long the plaintiff may take to re-file claims in state court if

those were to be dismissed from federal court.

Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)

(Brandeis, J., dissenting) (“It is one of the happy in-

cidents of the federal system that a single coura-

geous state may, if its citizens choose, serve as a la-

boratory; and try novel social and economic experi-

ments without risk to the rest of the country.”).

These myriad state policy decisions should not be

overturned lightly and not unless preempted explicit-

ly by Congress.

B. States have considered—and responded

to—the problem Section 1367(d) is in-

tended to address.

1. State legislatures have long confronted the

statutes-of-limitations problem that Section 1367(d)

was intended to address. Congress recognized as

much when it expressly instructed that a claim’s pe-

riod of limitations shall be tolled “while the claim is

pending and for a period of 30 days after it is dis-

missed unless State law provides for a longer tolling

period” (emphasis added). And, in fact, a majority of

states—32 in total—do provide for a designated peri-

od of time to re-file in state court that is “longer”

than 30 days,’ reinforcing that Section 1367(d) was

intended merely to provide a grace period to re-file

for those several states that did not provide for such

“tolling period[s].” Indeed, these state law tolling

statutes, by and large, precede Section 1367(d); Con-

gress was thus presumably well aware of them when

it enacted Section 1367(d). See Cannon v. Univ. of

Chi., 441 U.S. 677, 696—98 (1979) (explaining that

“li]t is always appropriate to assume that our elected

representatives, like other citizens, know the law,”

15 Attached to this Brief is an Appendix listing the various state

law tolling statutes in each of the 50 states and the District of

Columbia.

and that this is particularly true when Congress ref-

erences certain laws), remanded to 605 F.2d 560 (7th

Cir. 1979), appealed after remand, 648 F.2d 1104

(7th Cir. 1981), mandamus denied, 454 U.S. 811

(1981), cert. denied, 454 U.S. 1128 (1981), cert. de-

nied, 460 U.S. 1013 (1983).

State law tolling statutes are essential ele-

ments of states’ systems of limitations. As this Court

has explained:

Any period of limitation .. . is under-

stood fully only in the context of the var-

ious circumstances that suspend it from

running against a particular cause of

action .. . [ijn virtually all statutes of

limitations the chronological length of

the limitation period is interrelated

with provisions regarding tolling, reviv-

al, and questions of applicability.

Johnson, 421 U.S. at 463—64 (1975). The details of

states’ tolling provisions, such as their lengths and

the circumstances in which they apply, again reflect

the considered policy choices of the states.

Consistent with centuries of practice, state

law tolling statutes nearly always “giv[e] to a plain-

tiff whose timely action is dismissed for procedural

reasons such as improper venue a specified time in

which to bring a second action.” Burnett v. N.Y. Cent.

R.R. Co., 380 U.S. 424, 432 (1965). See Gaines v. City

of New York, 109 N.E. 594, 595 (N.Y. 1915) (explain-

ing that New York’s tolling statute “has its roots in

the distant past,” specifically the English Limitations

Act of 1623 (21 Jac. 1, c. 16, § 4)). As of 1965, this

Court noted that 31 states had such statutes, Bur-

nett, 380 U.S. at 431-32 n.9,!© and since that time

several states that previously did not have relevant

tolling statutes have enacted them.!? Indeed, courts

in the dozen states that do not have such state law

tolling statutes—including, as relevant to this par-

ticular case, the District of Columbia!*—acknowledge

that they are in the minority.*9

Both historically and currently, the principal

way in which states have enabled plaintiffs to re-file

claims in certain circumstances has been to provide

plaintiffs with a set amount of time to re-file, rather

than through suspending the statute of limitations.

Nearly all—33 of 39—of state law tolling statutes

provide that a second action may be brought during a

fixed amount of time after the initial case is dis-

16 Although the Court in Burnett was focused on dismissals for

improper venue, the statutes it cited generally address dismis-

sals for a variety of reasons, including for lack of subject-matter

jurisdiction.

17 See, e.g., Neb. Rev. Stat. Ann. § 25-201.01 (enacted by 2000

Neb. Laws, LB 55, § 1); Nev. Rev. Stat. Ann. § 11.500 (enacted

by ch. 376, § 1, 2003 Nev. Stat. 2134; amended by ch. 89, § 1,

2005 Nev. Stat. 247); Rader v. Greenberg Traurig, LLP, 352

P.3d 465, 469 (Ariz. Ct. App. 2015) (“the Legislature enacted a

general civil savings statute in 1986, currently codified at

A.R.S. § 12-504.”).

18 The District of Columbia is included in the term “State” as

used in Section 1367. 28 U.S.C. § 1367(e).

19 See, e.g., East v. Graphic Arts Indus. Tr., 718 A.2d 153, 156

(D.C. 1998), answer conformed to 172 F.3d 919 (D.C. Cir. 1998)

answer conformed to 172 F.3d 919 (D.C. Cir. 1998); Eto v. Mu-

ranaka, 57 P.3d 413, 427 (Haw. 2002); HCA Health Servs. of

Fla., Inc. v. Hillman, 906 So. 2d 1094, 1098 (Fla. Dist. Ct. App.

2004), review denied, 904 So. 2d 430 (Fla. 2005).

missed.2° The tolling periods provided by these stat-

utes vary from as little as 30 days to as much as

three years, but most states provide six months or

one year.?! As with statutes of limitations them-

selves, these differences reflect considered policy de-

cisions by states. Longer tolling periods provide

plaintiffs with more access to state courts, while

short tolling periods better guard against the prob-

lems and costs associated with litigating stale

claims. In addition, states have recognized the fact

that these tolling statutes can increase the work-

loads, and thus costs, of government offices.22 And

just as with statutes of limitations in general, states

periodically revise their tolling statutes to reflect up-

dated policy preferences.”

Despite the variations among states’ tolling

statutes, they almost always cover the same situa-

tions addressed by 28 U.S.C. § 1367(d). Some states

have a tolling statute that specifically addresses

20 A small minority of states take a different approach, such as

not computing as part of the limitations period the time the

claim was pending in the first case. See Appendix.

21 See Appendix.

22 See Howard Kensinger, Fiscal note: Legislative Fiscal Analyst

Estimate (Jan. 7, 2000),

http://www.nebraskalegislature.gov/FloorDocs/96/PDF/FN/LB5

5.pdf (noting that the Nebraska “Attorney General advises this

bill [establishing a state law tolling statute] would increase the

workload in the Attorney General’s Office. Cases that are cur-

rently dismissed could be re-filed even if the statute of limita-

tions had passed.”).

23 For example, Oregon previously provided for a one-year sav-

ing period, but now provides for 180 days. Or. Rev. Stat.

§ 12.220 (as amended by 2003 Or. Laws ch. 296). Indiana previ-

ously provided a five-year state law tolling statute; currently it

provides for three years. Compare Burnett, 380 U.S. at 431 n.9

with Ind. Code § 34-11-8-1.

state-law claims that are dismissed by a federal

court and re-filed in state court. See, e.g., Colo. Rev.

Stat. § 13-80-111(2) (“[t]his section shall be applica-

ble to all actions which are first commenced in a fed-

eral court as well as those first commenced in the

courts of Colorado or of any other state”); Conn. Gen.

Stat. Ann. § 52-592(d) (providing that this section

shal] apply “to any action brought to the United

States circuit or district court for the district of Con-

necticut which has been dismissed without trial upon

its merits or because of lack of jurisdiction in such

court”); Ky. Rev. Stat. Ann. § 413.270(2) (defining

“court,” as used in Kentucky’s tolling statute, to in-

clude “all courts . . . of the Commonwealth of Ken-

tucky or of the United States of America.”). Other

states’ statutes apply generally to claims that fail

otherwise than upon the merits, which numerous

courts have interpreted as applying to state-law

claims dismissed by a federal court declining to exer-

cise jurisdiction over them after dismissing related

federal claims. See, e.g., Grider v. USX Corp., 847

P.2d 779, 788 n.7 (Okla. 1993) (explaining that alt-

hough Oklahoma’s saving statue applies when a fed-

eral court declines to exercise supplemental jurisdic-

tion, it is “available only to those pendent claims that

had become barred during an action’s pendency’);

Liberace v. Conway, 574 N.E.2d 1010, 1012 (Mass.

App. Ct. 1991) (holding that Massachusetts’ tolling

statute “is applicable to pendent claims dismissed in

a Federal court’), review denied, 411 Mass. 1102

(Mass. 1991); Osborne v. AK Steel/Armco Steel Co.,

775 N.E.2d 483 (Ohio 2002) (holding that the Ohio

tolling statute applied to a state age-discrimination

claim brought in state court after a federal court

dismissed it after granting summary judgment for

the defendant on the federal-law claims); Vale v.

Ryan, 809 S.W.2d 324 (Tex. App. 1991) (applying

Texas’s current tolling statute where a federal court

refused to exercise jurisdiction over a pendent state

claim); Burford v. Sun Oil Co., 186 S.W.2d 306, 315

(Tex. Civ. App. 1944) (applying a prior version of

Texas’s tolling statute where “[t]he appellees brought

their suit in the Federal court. It was dismissed be-

cause the State courts were the proper courts or

courts of proper jurisdiction in which to bring suit.”).

As a general matter, state law tolling statutes are

applicable to claims that began in federal court.*4

2. The final clause of Section 1367(d)—

“unless State law provides for a longer tolling peri-

od”—expressly recognizes these state-law “tolling pe-

riod[s],” emphasizing that the modest purpose of the

federal provision is to ensure that plaintiffs can

bring related state-law claims to federal courts under

Section 1367(a) without fear that statutes of limita-

tions would bar them from re-filing those claims in

state court. The plain language of Section 1367(d)

demonstrates that at the time Section 1367(d) was

enacted, Congress recognized that many states al-

ready provided for tolling periods longer than the one

set forth in Section 1367(d). In those cases, Congress

intended for the state tolling periods to apply.

Petitioner’s interpretation, however, has pre-

cisely the opposite effect. It would result in federal

law supplanting state tolling statutes, despite the

fact that the text of Section 1367(d) demonstrates

Congress’s intention to respect these state statutes.

Under Petitioner’s approach, state tolling statutes

24 Cf. e.g., 42 Pa. Stat. and Cons. Stat. Ann. § 5103(b) (providing

a specific procedural mechanism for federal court dismissals);

Ferrari v. Antonacci, 689 A.2d 320, 322-23 (Pa. Super. Ct.

1997), appeal denied, 548 Pa. 670 (Pa. 1997).

would not apply whenever the amount of time re-

maining on the state statute of limitations when a

plaintiff files in federal court, plus 30 days, is longer

than the amount of time provided in the state tolling

statute. Even the most generous state tolling statute

could thus be supplanted by a federal tolling period

in certain circumstances. For example, in this very

case, Petitioner’s view that she is entitled to nearly

two years to re-file her claims would supplant 32

state-law tolling statutes. This outcome is contrary

to the language of Section 1367(d) calling for the use

of state tolling periods. Such an interpretation of

Section 1367(d) is not grounded in either the text or

legislative history of the statute, and, as discussed

below, it serves no recognized federal purpose.

Ill. RESPONDENT’S INTERPRETATION BEST

BALANCES FEDERALISM CONCERNS.

A. Respondent’s interpretation fulfills Con-

gress’s purpose in enacting Section

1367(d).

As the Court has often explained, “[t]he pur-

pose of Congress is the ultimate touchstone’ in every

pre-emption case.” Medtronic, Inc. v. Lohr, 518 U.S.

470, 485 (1996) (quoting Retail Clerks v. Schermer-

horn, 375 U.S. 96, 103 (1963)). Petitioner acknow]l-

edges that “the purpose of the [Section 1367(d)] toll-

ing rule is ‘to prevent the loss of claims to statutes of

limitations where state law might fail to toll the

running of the period of limitations while a supple-

mental claim was pending in federal court.” Pet. Br.

at 6-7 (quoting H.R. Rep. No. 101-734, at 30 (1990),

reprinted in 1990 U.S.C.C.A.N. 6860, 6874). And in-

deed, the legislative history of Section 1367(d) un-

derscores that “[t]he purpose is to prevent the loss of

claims to statutes of limitations where state law

might fail to toll the running of the period of limita-

tions while a supplemental claim was pending in

federal court.” H.R. Rep. No. 101-734, at 30, 1990

U.S.C.C.A.N. at 6874. In Jinks, the Court identified

two ways in which eliminating the possibility of the

statute of limitations on supplemental claims becom-

ing time barred while pending in federal court was

“conducive to the administration of justice in federal

court.” Jd. at 463 (internal quotations omitted). First,

it eliminated the unsatisfactory and inefficient op-

tions available to federal judges in the pre-Section

1367(d) world. That is, unless a defendant agreed to

waive any statute of limitations defenses, federal

judges might “retain jurisdiction over the state-law

claim even though it would more appropriately be

heard in state court” or “dismiss the state-law claim

but allow the plaintiff to reopen the federal case if

the state court later held the claim to be time

barred.” Jd. at 463.

Second, prior to Section 1367(d)’s enactment,

plaintiffs too faced unattractive options at the outset

of their litigation in those states without an applica-

ble tolling statute. Plaintiffs who brought both state-

and federal-law claims together in federal court

risked that the statute of limitations on the state-law

claim would expire while the case was pending in

federal court; if the federal court dismissed the fed-

eral-law claim and declined to exercise jurisdiction

over the state-law claim, the plaintiffs would be una-

ble to then bring the state-law claim in state court.

Alternatively, plaintiffs could “file a single state-law

action, which would abandon their right to a federal

forum,” Jd. There was only one way for plaintiffs to

ensure that both their state- and federal-law claims

could be decided on the merits. They would have to

bring separate actions in federal and state courts,

and bear increased litigation expenses. In states

without their own tolling statutes, this pre-Section

1367(d) system acted as “a serious impediment to ac-

cess to the federal courts on the part of plaintiffs

pursuing federal- and state-law claims that ‘derive

from a common nucleus of operative fact.” Jd. (quot-

ing Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966)).

Section 1367(d) removed these problems facing fed-

eral judges and plaintiffs. This Court accordingly

concluded that it fell within Congress’s authority un-

der the Necessary and Proper Clause.

Respondent’s interpretation completely fulfills

Congress’s purpose in enacting Section 1367(d). It

provides a “straightforward tolling rule” in place of

the “inefficient” and “unsatisfactory” options open to

federal judges and plaintiffs in the pre-Section

1367(d) era. Jinks, 538 U.S. at 463-64. The scope of

the preemption under Respondent’s interpretation is

precisely aligned with Congress’s intention to remove

the possibility a time-bar could prevent the claim

from being re-filed in state court; it provides a feder-

al tolling period where state law does not already

address this problem through provision of “a longer

tolling period.”

In contrast, Petitioner’s approach would vastly

expand the applicability of Section 1367(d) well be-

yond the specific intent of Congress and for no feder-

al jurisdictional purpose. Under Petitioner’s inter-

pretation, Section 1367(d) would alter the relevant

state statute of limitations in all instances, even if

the state statute of limitations would not have ex-

pired while the state-law claim was pending in fed-

eral court.25 In that scenario, the problem that con-

25 The Court of Appeals of Maryland has suggested that the use

of the word “shall” in Section 1367(d) indicates that it must ap-

cerned Congress and which was described in Jinks

simply is not implicated, rendering the federal intru-

sion gratuitous.

Nothing in the text, the legislative history, or

the Court’s analysis in Jinks indicates any intention

of Congress to preempt state law absent the need to

prevent the loss of claims. As a result, only Respond-

ent’s interpretation of Section 1367(d) is consistent

with the intent of Congress.

B. The presumption against preemption fa-

vors Respondent’s interpretation.

This Court has explained that “when the text

of a pre-emption clause is susceptible of more than

one plausible reading, courts ordinarily ‘accept the

reading that disfavors pre-emption.” Altria Grp., Inc.

v. Good, 555 U.S. 70, 77 (2008) (quoting Bates v. Dow

Agrosciences LLC, 544 U.S. 431, 449 (2005)). Similar-

ly, where there are multiple plausible interpretations

of a preemption provision, the Court uses the pre-

sumption against preemption “to support a narrow

interpretation” of that provision. Medtronic, 518 U.S.

at 485. Congress must speak clearly whenever it “in-

tends to pre-empt the historic powers of the States”

or when it legislates in “traditionally sensitive areas’

that ‘affec[t] the federal balance.” Raygor v. Regents

of Univ. of Minn., 534 U.S. 533, 543 (2002) (quoting

ply in every case. Turner v. Kight, 957 A.2d 984, 991 (Md.

2008), cert. denied, 556 U.S. 1181 (2009). However, as other

courts have explained, “shall be tolled” can be understood as

meaning “the statute could abate the expiration of any period of

limitations for as long as a claim was pending in federal court

plus 30 days after dismissal.” City of Los Angeles v. Cty. of Kern,

328 P.3d 56, 60 (Cal. 2014) (citing Kolani v. Gluska, 64 Cal.

App. 4th 402, 409-11, 75 Cal. Rptr. 2d 257, 261-62 (1998)) (em-

phasis added).

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65

(1989)).

This is such a case—‘“Section 1367(d) is ...a

balance-altering statute [(Raygor, 534 U.S. at 544)];

it preempts state law, supplanting to some extent

state statutes of limitations that would otherwise

apply to affected claims.” City of Los Angeles, 328

P.3d at 64. And this affects real state interests—

“states long have established, and have a uniquely

strong interest in, the limitations periods that apply

to their own state law claims in their own state

courts.” Jd. (citing Carnegie-Mellon Univ. v. Cohill,

484 U.S. 343, 353 (1988)).

Respondent’s interpretation of Section 1367(d)

provides for the minimal interference with states’

limitations rules. It establishes a federal tolling peri-

od for state-law claims that is straightforward and

ensures that plaintiffs’ state-law claims will not ex-

pire while pending in federal court. And it does not

supersede state-law tolling statutes that already

provide plaintiffs with an amount of time to re-file

claims in state court that is greater than 30 days, nor

does it supplant state statutes of limitations unless

the statute of limitations would have expired within

30 days of dismissal from federal court.

Petitioner’s approach, on the other hand,

wreaks havoc on states’ carefully crafted systems of

statutes of limitations and tolling statutes. It has the

potential to alter the statutes of limitations applica-

ble to state-law claims in every state. Critically, this

interpretation would result in the preemption of

state statutes of limitations and state-law tolling

statutes even when it is entirely unnecessary to en-

sure that plaintiffs are able to re-file their state-law

claims in state court.

Moreover, under Petitioner’s approach, the

amount of time that Section 1367(d) provides to

plaintiffs beyond what is provided for by state law

would vary case-by-case within a state, depending on

how much time was remaining on a plaintiffs

state-law claim when it was filed in federal court.

This is a much greater disruption to states’ statutes

of limitations and tolling statutes than Respondent’s

approach, which instead establishes a uniform 30-

day minimum for only those states that do not pro-

vide for a longer time.

Finally, under Petitioner’s interpretation of

Section 1367(d), states would have limited legislative

tools to avoid preemption and the potential for long

delays in the re-filing of state-law claims dismissed

by a federal court. The only way that a state could

limit the possibility of time extensions that it consid-

ers contrary to the public interest would be to reduce

the statute of limitations for all plaintiffs, including

for those who initially bring the claim in state court.

Thus, Petitioner’s approach undermines the carefully

balanced policy considerations states have made in

enacting their statutes of limitations and state law

tolling statutes.

Petitioner’s approach constitutes sweeping in-

terference with state-law limitations rules; Respond-

ent’s approach, on the other hand, is minimally inva-

sive, while guaranteeing against the loss of state-law

claims initially brought in federal court. If the Court

does not conclude that Respondent’s interpretation is

required by the plain language of the statute, the

Court should apply the presumption against preemp-

tion when interpreting Section 1367(d).

CONCLUSION

The judgment below should be affirmed.

LISA SORONEN

Executive Director

STATE & LOCAL

LEGAL CENTER

444 North Capitol

Street, N.W.

Washington, D.C. 20001

(202) 434-4845

lsoronen@sso.org

August 18, 2017

Respectfully submitted,

KATHARINE M. MAPES*

WILLIAM S. HUANG

JEFFREY M. BAYNE

*Counsel of Record

SPIEGEL & MCDIARMID LLP

1875 Eye Street, N.W.

Suite 700

Washington, D.C. 20006

(202) 879-4000

katharine.mapes@spiegelmcd.

com

APPENDIX

State Law Tolling Statutes

Table of Contents

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MARYLAND—30 DAYS ....................cceececessssssssneceees 9a

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MICHIGAN—UNCERTAIN TOLLING

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NORTH CAROLINA—1 YEAR ...............0..0..:00:0000 15a

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PENNSYLVANIA—PROCEDURAL

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VIRGINIA—TIME NOT COUNTED ......................

WEST VIRGINIA—1 YEAR ...........0........4..cccc0cceeees

Alaska—1 Year

Alaska Stat. § 9.10.240

If an action is commenced within the time prescribed

and is dismissed upon the trial or upon appeal after

the time limited for bringing a new action, the

plaintiff or, if the plaintiff dies and the cause of

action in favor of the plaintiff survives, the heirs or

representatives may commence a new action upon

the cause of action within one year after the

dismissal or reversal on appeal. All defenses

available against the action, if brought within the

time limited, are available against the action when

brought under this provision.

Arizona—6 Months

Ariz. Rev. Stat. § 12-504(A)

If an action is commenced within the time limited for

the action, and the action is terminated in any

manner other than by abatement, voluntary

dismissal, dismissal for lack of prosecution or a fina]

judgment on the merits, the plaintiff, or a successor

or personal representative, may commence a new

action for the same cause after the expiration of the

time so limited and within six months after such

termination. If an action timely commenced is

terminated by abatement, voluntary dismissal by

order of the court or dismissal for lack of prosecution,

the court in its discretion may provide a period for

commencement of a new action for the same cause,

although the time _ otherwise’ limited for

commencement has expired. Such period shall not

exceed six months from the date of termination.

Arkansas—1i Year

Ark. Code Ann. § 16-56-126(a)(1)

If any action is commenced within the time

respectively prescribed in this act, in §§ 16-116-101 --

16-116-107, in §§ 16-114-201 -- 16-114-209, or in any

other act, and the plaintiff therein suffers a nonsuit,

or after a verdict for him or her the judgment is

arrested, or after judgment for him or her the

judgment is reversed on appeal or writ of error, the

plaintiff may commence a new action within one (1)

year after the nonsuit suffered or judgment arrested

or reversed.

Colorado—90 Days

Colo. Rev. Stat. § 13-80-111

(1) If an action is commenced within the period

allowed by this article and is terminated because of

lack of jurisdiction or improper venue, the plaintiff

or, if he dies and the cause of action survives, the

personal representative may commence a new action

upon the same cause of action within ninety days

after the termination of the original action or within

the period otherwise allowed by this article,

whichever is later, and the defendant may interpose

any defense, counterclaim, or setoff which might

have been interposed in the original action.

(2) This section shall be applicable to all actions

which are first commenced in a federal court as well

as those first commenced in the courts of Colorado or

of any other state.

Connecticut—1 Year

Conn. Gen. Stat. Ann. § 52-592

(a) If any action, commenced within the time limited

by law, has failed one or more times to be tried on its

merits because of insufficient service or return of the

writ due to unavoidable accident or the default or

neglect of the officer to whom it was committed, or

because the action has been dismissed for want of

jurisdiction, or the action has been otherwise avoided

or defeated by the death of a party or for any matter

of form; or if, in any such action after a verdict for

the plaintiff, the judgment has been set aside, or if a

judgment of nonsuit has been rendered or a

judgment for the plaintiff reversed, the plaintiff, or,

if the plaintiff is dead and the action by law survives,

his executor or administrator, may commence a new

action, except as provided in subsection (b) of this

section, for the same cause at any time within one

year after the determination of the original action or

after the reversal of the judgment.

x**eek*

(d) The provisions of this section shall apply . . . to

any action brought to the United States circuit or

district court for the district of Connecticut which

has been dismissed without trial upon its merits or

because of lack of jurisdiction in such court. If such

action is within the jurisdiction of any state court,

the time for bringing the action to the state court

shall commence from the date of dismissal in the

United States court, or, if an appeal or writ of error

has been taken from the dismissal, from the final

determination of the appeal or writ of error.

xk*x«**

Delaware—1 Year

Del. Code Ann. tit. 10, § 8118(a)

If in any action duly commenced within the time

limited therefor in this chapter, the writ fails of a

sufficient service or return by any unavoidable

accident, or by any default or neglect of the officer to

whom it is committed; or if the writ is abated, or the

action otherwise avoided or defeated by the death of

any party thereto, or for any matter of form; or if

after a verdict for the plaintiff, the judgment shall

not be given for the plaintiff because of some error

appearing on the face of the record which vitiates the

proceedings; or if a judgment for the plaintiff is

reversed on appeal or a writ of error; a new action

may be commenced, for the same cause of action, at

any time within 1 year after the abatement or other

determination of the original action, or after the

reversal of the judgment therein.

Georgia—6 Months

Ga. Code Ann. § 9-2-61

(a) When any case has been commenced in either a

state or federal court within the applicable statute of

limitations and the plaintiff discontinues or

dismisses the same, it may be recommenced in a

court of this state or in a federal court either within

the original applicable period of limitations or within

six months after the discontinuance or dismissal,

whichever is later, subject to the requirement of

payment of costs in the original action as required by

subsection (d) of Code Section 9-11-41; provided,

however, if the dismissal or discontinuance occurs

after the expiration of the applicable period of

limitation, this privilege of renewal shall be

exercised only once.

zx*xeke

section granting a privilege of renewal shall apply if

an action is discontinued or dismissed without

prejudice for lack of subject matter jurisdiction in

either a court of this state or a federal court in this

state.

Illinois—1 Year

735 Ill. Comp. Stat. 5/13-217

(Text of Section WITHOUT the changes made

by P.A. 89-7, which has been held unconstitutional

[by Best v. Taylor Mach. Works, 689 N.E.2d 1057 (Jil.

1997)])

In the actions specified in Article XIII of this Act

[735 ILCS 5/13-101 et seq.} or any other act or

contract where the time for commencing an action is

limited, if judgment is entered for the plaintiff but

reversed on appeal, or if there is a verdict in favor of

the plaintiff and, upon a motion in arrest of

judgment, the judgment is entered against the

plaintiff, or the action is voluntarily dismissed by the

plaintiff, or the action is dismissed for want of

prosecution, or the action is dismissed by a United

States District Court for lack of jurisdiction, or the

action is dismissed by a United States District Court

for improper venue, then, whether or not the time

limitation for bringing such action expires during the

pendency of such action, the plaintiff, his or her

heirs, executors or administrators may commence a

new action within one year or within the remaining

period of limitation, whichever is greater, after such

judgment is reversed or entered against the plaintiff,

or after the action is voluntarily dismissed by the

plaintiff, or the action is dismissed for want of

prosecution, or the action is dismissed by a United

States District Court for lack of jurisdiction, or the

action is dismissed by a United States District Court

for improper venue.

Indiana—3 Years

Ind. Code § 34-11-8-1

(a) This section applies if a plaintiff commences an

action and:

(1) the plaintiff fails in the action from any cause

except negligence in the prosecution of the action;

x*keketk

(b) If subsection (a) applies, a new action may be

brought not later than the later of:

(1) three (3) years after the date of the

determination under subsection (a); or

(2) the last date an action could have been

commenced under the statute of limitations

governing the original action; and be considered a

continuation of the original action commenced by

the plaintiff.

lowa—6 Months

lowa Code § 614.10

If, after the commencement of an action, the

plaintiff, for any cause except negligence in its

prosecution, fails therein, and a new one is brought

within six months thereafter, the second shall, for

the purposes herein contemplated, be held a

continuation of the first.

Kansas—6 Months

Kan. Stat. Ann. § 60-518

If any action be commenced within due time, and the

plaintiff fail in such action otherwise than upon the

merits, and the time limited for the same shall have

expired, the plaintiff, or, if the plaintiff die, and the

cause of action survive, his or her representatives

may commence a new action within six (6) months

after such failure.

Kentucky—90 Days

Ky. Rev. Stat. Ann. § 413.270

(1) If an action is commenced in due time and in

good faith in any court of this state and the

defendants or any of them make defense, and it is

adjudged that the court has no jurisdiction of the

action, the plaintiff or his representative may, within

ninety (90) days from the time of that judgment,

commence a new action in the proper court. The time

between the commencement of the first and last

action shall not be counted in applying any statute of

limitation.

(2) As used in this section, “court” means all courts,

commissions, and boards which are judicial or quasi-

judicial tribunals authorized by the Constitution or

statutes of the Commonwealth of Kentucky or of the

United States of America.

Louisiana—Runs Anew

La. Civ. Code art. 3462

Prescription is interrupted when the owner

commences action against the possessor, or when the

obligee commences action against the obligor, in a

court of competent jurisdiction and venue. If action is

commenced in an incompetent court, or in an

improper venue, prescription is interrupted only as

to a defendant served by process within the

prescriptive period.

La. Civ. Code Ann. art. 3466

If prescription is interrupted, the time that has run

is not counted. Prescription commences to run anew

from the last day of interruption.

Maine—6 Months

Me. Stat. tit. 14, § 855

When a summons fails of sufficient service or return

by unavoidable accident, or default, or negligence of

the officer to whom it was delivered or directed, or

the action is otherwise defeated for any matter of

form, or by the death of either party the plaintiff may

commence a new action on the same demand within

6 months after determination of the original action;

and if he dies and the cause of action survives, his

executor or administrator may commence such new

action within said 6 months.

Maryland—30 Days

Md. R. 2-101

(a) Generally. A civil action is commenced by filing a

complaint with a court.

(b) After Certain Dismissals by a United States

District Court or a Court of Another State. Except as

otherwise provided by statute, if an action is filed in

a United States District Court or a court of another

state within the period of limitations prescribed by

Maryland law and that court enters an order of

dismissal (1) for lack of jurisdiction, (2) because the

court declines to exercise jurisdiction, or (3) because

the action is barred by the statute of limitations

required to be applied by that court, an action filed

in a circuit court within 30 days after the entry of the

order of dismissal shall be treated as timely filed in

this State.

Cross reference: Code, Courts Article, § 5-115.

for Lack of Subject Matter Jurisdiction. If an action

is filed in the District Court of Maryland within the

period of limitations prescribed by Maryland law and

the District Court dismisses the action for lack of

10a

subject matter jurisdiction, an action filed in a circuit

court within 30 days after the entry of the order of

dismissal shall be treated as timely filed in the

circuit court.

Massachusetts—1 Year

Mass. Gen. Laws ch. 260, § 32

If an action duly commenced within the time limited

in this chapter is dismissed for insufficient service of

process by reason of an unavoidable accident or of a

default or neglect of the officer to whom such process

is committed or is dismissed because of the death of a

party or for any matter of form, or if, after judgment

for the plaintiff, the judgment of any court is vacated

or reversed, the plaintiff or any person claiming

under him may commence a new action for the same

cause within one year after the dismissal or other

determination of the original action, or after the

reversal of the judgment; and if the cause of action

by law survives the executor or administrator or the

heir or devisee of the plaintiff may commence such

new action within said year.

Michigan—Uncertain Tolling Effect

Mich. Comp. Laws § 600.5856

The statutes of limitations or repose are tolled in any

of the following circumstances:

(a) At the time the complaint is filed, if a copy of the

summons and complaint are served on the defendant

within the time set forth in the supreme court rules.

lla

(b) At the time jurisdiction over the defendant is

otherwise acquired.

applicable notice period under section 2912b, if

during that period a claim would be barred by the

statute of limitations or repose; but in this case, the

statute is tolled not longer than the number of days

equal to the number of days remaining in the

applicable notice period after the date notice is given.

Mississippi—1 Year

Miss. Code Ann. § 15-!-69

If in any action, duly commenced within the time

allowed, the writ shall be abated, or the action

otherwise avoided or defeated, by the death of any

party thereto, or for any matter of form, or if, after

verdict for the plaintiff, the judgment shall be

arrested, or if a judgment for the plaintiff shall be

reversed on appeal, the plaintiff may commence a

new action for the same cause, at any time within

one year after the abatement or other determination

of the original suit, or after reversal of the judgment

therein, and his executor or administrator may, in

case of the plaintiff's death, commence such new

action, within the said one year.

Missouri—1 Year

Mo. Rev. Stat. § 516.230

If any action shall have been commenced within the

times respectively prescribed in sections

516.010 to 516.370, and the plaintiff therein suffer a

12a

nonsuit, or, after a verdict for him, the judgment be

arrested, or, after a judgment for him, the same be

reversed on appea! or error, such plaintiff may

commence a new action from time to time, within one

year after such nonsuit suffered or such judgment

arrested or reversed; and if the cause of action

survive or descend to his heirs, or survive to his

executors or administrators, they may, in like

manner, commence a new action within the time

herein allowed to such plaintiff, or, if no executor or

administrator be qualified, then within one year

after letters testamentary or of administration shal]

have been granted to him.

Montana—1 Year

Mont. Code Ann. § 27-2-407

If an action is commenced within the time limited for

the action and a judgment is reversed on appeal

without awarding a new trial or the action is

terminated in any other manner than by a voluntary

discontinuance, a dismissal of the complaint for

neglect to prosecute the action, or a final judgment

upon the merits, the plaintiff or, if the plaintiff dies

and the cause of action survives, the plaintiffs

representative may commence a new action for the

same cause after the expiration of the time limited

and within 1 year after a reversal or termination.

Nebraska—6 Months

Neb. Rev. Stat. § 25-201.01

(i) If an action is commenced within the time

prescribed by the applicable statute of limitations

but the plaintiff fails in the action for a reason other

13a

than a reason specified in subsection (2) of this

section and the applicable statute of limitations

would prevent the plaintiff from commencing a new

action, the plaintiff, or his or her representatives if

the plaintiff has died and the cause of action

survived, may commence a new action within the

period specified in subsection (3) of this section.

(2) A new action may not be commenced in

accordance with subsection (1) of this section when

the original action failed (a) on the merits of the

action, (b) as a result of voluntary dismissal by the

plaintiff for a reason other than loss of diversity

jurisdiction in a federal court, (c) as a result of the

plaintiffs failure to serve a defendant within the

time prescribed in section 25-217, or (d) as a result of

any other inaction on the part of the plaintiff where

the burden of initiating an action was on the

plaintiff.

(3) A new action may be commenced in accordance

with subsection (1) of this section within a period

equal to the lesser of (a) six months after the failure

of the action or (b) a period after the failure of the

action equal to the period of the applicable statute of

limitations of the original action.

Nevada—90 Days

Nev. Rev. Stat. § 11.500

1. Notwithstanding any other provision of law, and

except as otherwise provided in this section, if an

action that is commenced within the applicable

period of limitations is dismissed because the court

lacked jurisdiction over the subject matter of the

l4a

action, the action may be recommenced in the court

having jurisdiction within:

(a) The applicable period of limitations; or

(b) Ninety days after the action is dismissed,

whichever is later.

*e*K

3. An action may not be recommenced pursuant to

paragraph (b) of subsection 1 more than 5 years after

the date on which the original action was

commenced.

New Hampshire—1 Year

N.H. Rev. Stat. Ann. § 508:10

If judgment is rendered against the plaintiff in an

action brought within the time limited therefor, or

upon a writ of error thereon, and the right of action

is not barred by the judgment, a new action may be

brought thereon in one year after the judgment.

New Mexico—6 Months

N.M. Stat. Ann. § 37-1-14

If, after the commencement of an action, the plaintiff

fail therein for any cause, except negligence in its

prosecution, anc a new suit be commenced within six

months thereafter, the second suit shall, for the

purposes herein contemplated, be deemed a

continuation of the first.

l5a

New York—6 Months

N.Y. C.P.L.R. § 205(a)

If an action is timely commenced and is terminated

in any other manner than by a_= voluntary

discontinuance, a failure to obtain personal

jurisdiction over the defendant, a dismissal of the

complaint for neglect to prosecute the action, or a

final judgment upon the merits, the plaintiff, or, if

the plaintiff dies, and the cause of action survives,

his or her executor or administrator, may commence

a new action upon the same transaction or

occurrence or series of transactions or occurrences

within six months after the termination provided

that the new action would have been timely

commenced at the time of commencement of the

prior action and that service upon defendant is

effected within such six-month period. Where a

dismissal is one for neglect to prosecute the action

made pursuant to rule thirty-two hundred sixteen of

this chapter or otherwise, the judge shall set forth on

the record the specific conduct constituting the

neglect, which conduct shall demonstrate a general

pattern of delay in proceeding with the litigation.

North Carolina—1 Year

N.C. Gen. Stat. § 1A-1, Rule 41

(a) Voluntary dismissal; effect thereof. --

(1) By Plaintiff; by Stipulation. -- ... Unless

otherwise stated in the notice of dismissal or

stipulation, the dismissal is without prejudice,

except that a notice of dismissal operates as an

adjudication upon the merits when filed by a

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plaintiff who has once dismissed in any court of

this or any other state or of the United States, an

action based on or including the same claim. If an

action commenced within the time prescribed

therefor, or any claim therein, is dismissed

without prejudice under this subsection, a new

action based on the same claim may be

commenced within one year after such dismissal]

unless a_ stipulation filed under (ii) of this

subsection shall specify a shorter time.

(2) By Order of Judge. -- .. .If an action

commenced within the time prescribed therefor,

or any claim therein, is dismissed without

prejudice under this subsection, a new action

based on the same claim may be commenced

within one year after such dismissal unless the

judge shall specify in his order a shorter time.

(b) Involuntary dismissal; effect thereof. -- .. . If

the court specifies that the dismissal of an action

commenced within the time prescribed therefor,

or any claim therein, is without prejudice, it may

also specify in its order that a new action based

on the same claim may be commenced within one

year or less after such dismissal.

Ohio—1 Year

Ohio Rev. Code § 2305.19(A)

In any action that is commenced or attempted to be

commenced, if in due time a judgment for the

plaintiff is reversed or if the plaintiff fails otherwise

than upon the merits, the plaintiff or, if the plaintiff

dies and the cause of action survives, the plaintiffs

representative may commence a new action within

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one year after the date of the reversal of the

judgment or the plaintiffs failure otherwise than

upon the merits or within the period of the original

applicable statute of limitations, whichever occurs

later. This division applies to any claim asserted in

any pleading by a defendant.

Oklahoma—1 Year

Okla. Stat. tit. 12, § 100

If any action is commenced within due time, and a

judgment thereon for the plaintiff is reversed, or if

the plaintiff fail in such action otherwise than upon

the merits, the plaintiff, or, if he should die, and the

cause of action survive, his representatives may

commence a new action within one (1) year after the

reversal or failure although the time limit for

commencing the action shall have expired before the

new action is filed.

Oregon—180 Days

Or. Rev. Stat. § 12.220

(1) Notwithstanding ORS 12.020, if an action is filed

with a court within the time allowed by statute, and

the action is involuntarily dismissed without

prejudice on any ground not adjudicating the merits

of the action, or is involuntarily dismissed with

prejudice on the ground that the plaintiff failed to

properly effect service of summons within the time

allowed by ORS 12.020 and the statute of limitations

for the action expired, the plaintiff may commence a

new action based on the same claim or claims

against a defendant in the original action if the

defendant had actual notice of the filing of the

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original action not later than 60 days after the action

was filed.

(2) If, pursuant to subsection (1) of this section, a

new action is commenced in the manner provided

by ORS 12.020 not later than 180 days after the

judgment dismissing the original action is entered in

the register of the court, the new action is not subject

to dismissal by reason of not having been commenced

within the time allowed by statute.

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Pennsylvania—Procedural Requirements

42 Pa. Cons. Stat. § 5103

(a) General rule.--lf an appeal or other matter is

taken to or brought in a court or magisterial district

of this Commonwealth which does not have

jurisdiction of the appeal or other matter, the court

or magisterial district judge shal] not quash such

appeal or dismiss the matter, but shall transfer the

record thereof to the proper tribunal of this

Commonwealth, where the appeal or other matter

shall be treated as if originally filed in the transferee

tribunal on the date when the appeal or other matter

was filed in a court of magisterial district of this

Commonwealth. A matter which is within the

exclusive jurisdiction of a court or magisterial

district judge of this Commonwealth but which is

commenced in any other tribunal or this

Commonwealth shall be transferred by the other

tribunal to the proper court or magisterial district of

this Commonwealth where it shall be treated as if

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originally filed in the transferee court or magisterial

district of this Commonwealth on the date when first

filed in the other tribunal.

(b) Federal cases.--

(1) Subsection (a) shall also apply to any matter

transferred or remanded by any United States court

for a district embracing any part of this

Commonwealth. In order to preserve a claim under

Chapter 55 (relating to limitation of time), a litigant

who timely commences an action or proceeding in

any United States court for a district embracing any

part of this Commonwealth is not required to

commence a protective action in a court or before a

magisterial district judge of this Commonwealth.

Where a matter is filed in any United States court

for a_ district embracing any part of this

Commonwealth and the matter is dismissed by the

United States court for lack of jurisdiction, any

litigant in the matter filed may transfer the matter

to a court or magisterial district of this

Commonwealth by complying with the transfer

provisions set forth in paragraph (2).

(2) Except as otherwise prescribed by general rules,

or by order of the United States court, such transfer

may be effected by filing a certified transcript of the

final judgment of the United States court and the

related pleadings in a court or magisterial district of

this Commonwealth. The pleadings shall have the

same effect as under the practice in the United

States court, but the transferee court or magisterial

district judge may require that they be amended to

conform to the practice in this Commonwealth.

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Section 5535(a)(2)(i) (relating to termination of prior

matter) shall not be applicable to a matter

transferred under this subsection.

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Rhode Island—1 Year

9 R.I. Gen. Laws § 9-1-22

If an action is timely commenced and is terminated

in any other manner than by a_ voluntary

discontinuance, a dismissal of the complaint for

neglect to prosecute the action, or a final judgment

upon the merits, the plaintiff, or if he or she dies and

the claim survives, his or her executor or

administrator, may commence a new action upon the

same claim within one year after the termination.

Tennessee—1 Year

Tenn. Code Ann. § 28-1-105(a)

(a) If the action is commenced within the time

limited by a rule or statute of limitation, but the

judgment or decree is rendered against the plaintiff

upon any ground not concluding the plaintiff's right

of action, or where the judgment or decree is

rendered in favor of the plaintiff, and is arrested, or

reversed on appeal, the plaintiff, or the plaintiff's

representatives and privies, as the case may be, may,

from time to time, commence a new action within one

(1) year after the reversal or arrest. Actions

originally commenced in general sessions court and

subsequently recommenced pursuant to this section

in circuit or chancery court shall not be subject to the

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monetary jurisdictional limit originally imposed in

the general sessions court.

Tenn. Code Ann. § 28-1-115

Notwithstanding any applicable statute of limitation

to the contrary, any party filing an action in a federal

court that is subsequently dismissed for lack of

jurisdiction shall have one (1) year from the date of

such dismissal to timely file such action in an

appropriate state court.

Texas—60 Days

Tex. Civ. Prac. & Rem. Code Ann. § 16.064

(a) The period between the date of filing an action in

a trial court and the date of a second filing of the

same action in a different court suspends the

running of the applicable statute of limitations for

the period if:

(1) because of lack of jurisdiction in the trial court

where the action was first filed, the action is

dismissed or the judgment is set aside or annulled

in a direct proceeding; and

(2) not later than the 60th day after the date the

dismissal or other disposition becomes final, the

action is commenced in a court of proper

jurisdiction.

(b) This section does not apply if the adverse party

has shown in abatement that the first filing was

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made with intentional disregard of proper

jurisdiction.

Utah—1 Year

Utah Code Ann. § 78B-2-111(1)

If any action is timely filed and the judgment for the

plaintiff is reversed, or if the plaintiff fails in the

action or upon a cause of action otherwise than upon

the merits, and the time limited either by law or

contract for commencing the action has expired, the

plaintiff, or if he dies and the cause of action

survives, his representatives, may commence a new

action within one year after the reversal or failure.

Vermont—1 Year

Vt. Stat. Ann. tit. 12, § 558(a)

The plaintiff may commence a new action for the

same cause within one year after the determination

of the original action, when the original action has

been commenced within the time limited by any

statute of this state, and the action has been

determined for any of the following reasons:

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(2) Where the action is dismissed for lack of

jurisdiction of the subject matter or person,

improper venue, or failure to join’ an

indispensable party;

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Virginia—Time Not Counted

Va. Code Ann. § 8.01-229(E)

Dismissal, abatement, or nonsuit.

1. Except as provided in subdivision 3, if any action

is commenced within the prescribed limitation period

and for any cause abates or is dismissed without

determining the merits, the time such action is

pending shall not be computed as part of the period

within which such action may be brought, and

another action may be brought within the remaining

period.

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3. If a plaintiff suffers a voluntary nonsuit as

prescribed in § 8.01-380, the statute of limitations

with respect to such action shall be tolled by the

commencement of the nonsuited action, regardless of

whether the statute of limitations is statutory or

contractual, and the plaintiff may recommence his

action within six months from the date of the order

entered by the court, or within the original period of

limitation, or within the limitation period as

provided by subdivision B 1, whichever period is

longer. This tolling provision shall apply irrespective

of whether the action is originally filed in a federal or

a state court and recommenced in any other court,

and shall apply to all actions irrespective of whether

they arise under common law or statute.

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West Virginia—1 Year

W. Va. Code § 55-2-18(a)

For a period of one year from the date of an order

dismissing an action or reversing a judgment, a

party may re-file the action if the initial pleading

was timely filed and (i) the action was involuntarily

dismissed for any reason not based upon the merits

of the action or (ii) the judgment was reversed on a

ground which does not preclude a filing of new action

for the same cause.

Wisconsin—Uncertain Tolling Effect

Wis. Stat. § 893.13(1)

In this section andss. 893.14 and 893.15 “final

disposition” means the end of the period in which an

appeal may be taken from a final order or judgment

of the trial court, the end of the period within which

an order for rehearing can be made in the highest

appellate court to which an appeal is taken, or the

fina] order or judgment of the court to which remand

from an appellate court is made, whichever is latest.

Wis. Stat. § 893.15

(1) In this section “a non-Wisconsin forum” means all

courts, state and federal, in states other than this

state and federal courts in this state.

(2) Im a non-Wisconsin forum, the time of

commencement or final disposition of an action is

determined by the local law of the forum.

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(3) A Wisconsin law limiting the time for

commencement of an action on a Wisconsin cause of

action is tolled from the period of commencement of

the action in a non-Wisconsin forum until the time of

its final disposition in that forum.

(4) Subsection (3) does not apply to an action

commenced on a Wisconsin cause of action in a non-

Wisconsin forum after the time when the action is

barred by a law of the forum limiting the time for

commencement of an action.

(5) If an action is commenced in a non-Wisconsin

forum on a Wisconsin cause of action after the time

when the Wisconsin period of limitation has expired

but before the foreign period of limitation has

expired, the action in the non-Wisconsin forum has

no effect on the Wisconsin period of limitation.

Wyoming—1 Year

Wyo. Stat. Ann. § 1-3-118

If in an action commenced in due time a judgment

for the plaintiff is reversed, or if the plaintiff fails

otherwise than upon the merits and the time limited

for the commencement of the action has expired at

the date of the reversal or failure, the plaintiff, or his

representatives if he dies and if the cause of action

survives, may commence a new action within

one (1) year after the date of the failure or reversal.

This provision also applies to any claim asserted in

any pleading by a defendant.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.