Rules and Guidelines When Dealing With Statute of Limitations · limitation for the following types of claims, among others: Real and personal property claims Tort claims –Personal

Rules and Guidelines When Dealing With

Statute of Limitations

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Mark S. Dreux, James H. Hulme and Alexandra M. RomeroArent Fox LLP

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Rules and Guidelines When Dealing With

Statute of Limitations

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mail: P.O. Box 509 Eau Claire, WI 54702-0509 • telephone: 866-352-9539 • fax: 715-833-3953email: [email protected] • website: www.lorman.com • seminar id: 401056

Prepared By:Mark S. Dreux, James H. Hulme and Alexandra M. Romero

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Rules and Guidelines When Dealing with Statutes of Limitation

Presented byMark S. DreuxJames H. HulmeAlexandra M. Romero

Arent Fox LLP

Washington, DC | New York, NY | Los Angeles, CA | San Francisco, CA

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Topics to be Covered:

I. Statutes of Limitation: The Basics

Types of Statutes of Limitation

Choice of Law: Which Statute of Limitations Applies?

Statute of Limitations v. Statute of Repose

II. Accrual, Tolling, and Exceptions

Accrual: The Injury Rule v. The Discovery Rule

Circumstances That May Toll the Applicable Statute of Limitations

Amendments to Pleadings and Relation Back


Topics to be Covered:

III. Litigation Strategies

How to Raise a Statute of Limitations Affirmative Defense

Using the Statute of Limitations to Narrow the Scope of the Litigation

Arguing Statute of Limitations Issues in Dispositive Motions

IV. Case Studies

Volks and Delek: Statutes of Limitation in Regulatory Enforcement Actions

The Lilly Ledbetter Fair Pay Act of 2009

Other Government “Continuing Violation” Theories

Enforcing Statutes of Limitation in Arbitration Proceedings


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Statutes of Limitation: The Basics




A statute of limitations specifies a time period for bringing a cause of action that begins to run when the cause of action accrues

Statutes of limitation are created by federal or state statute or other legislative policy

When a cause of action accrues depends on the law of the jurisdiction and the type of claim at issue

The statute of limitations acts to bar the cause of action and must be raised as an affirmative defense, or it is waived

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Types of Statutes of Limitation

Most states have enacted specific statutes of limitation for the following types of claims, among others:

Real and personal property claims

Tort claims

– Personal injury/wrongful death

– Fraud

– Medical malpractice

Breach of contract (written and oral)

Libel/slander

Felonies and misdemeanors

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Types of Statutes of Limitation: Examples

California New York Virginia Texas

Written contracts

4 years 6 years 5 years 4 years

Oral contracts 2 years 6 years 3 years 4 years

Property damage


Product liability

2 years 3 years 2 years 2 years or 15 years

Wrongful death


Libel/slander 1 year 1 year 1 year 1 year

Fraud 3 years 6 years 2 years 4 years

Legal malpractice

1 year 3 years 3 years or 5 years

2 years

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Types of Statutes of Limitation: Examples

Characterizing the cause of action where multiple statutes of limitation could apply may impact the time one has in which to assert it, e.g.:

Personal injury-warranty actions. The contract period of limitations usually is longer than the personal injury-tort limitations period.

Malpractice actions. Contract to provide care or tort?

Fraud actions. Implied contractual obligation or tort?

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Most federal statutes contain specific limitations periods, e.g.:

Fair Labor Standards Act (2-3 years)

OSH Act (within 6 months of the alleged violation)

Title VII (180 – 300 days to file a Charge of Discrimination with the EEOC or equivalent state agency following the alleged discrimination)

No federal statute of limitations of general application, so courts generally apply forum state’s statute of limitations to federal claims where the statute does not include a limitations period

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Applying statutes of limitation when in federal court:

If a federal statute provides a limitations period: apply statutory limitations period.

If there is no specific federal statute of limitations: apply relevant forum state limitations period.

– Federal courts are mixed on whether the application of a state statute of limitations to a federal cause of action requires the court to adopt ALL of the state’s rules as to limitations (e.g., rules regarding when the claim accrues, when the statute of limitations may be tolled, etc.)

If a federal court exercises diversity jurisdiction over state law claims: apply relevant forum state limitations period.

– Includes ALL state rules regarding construction and interpretation of state statute of limitations

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Applying statutes of limitation when in state court: Generally, the law of the forum state applies unless it is expressly shown that a different state’s law should apply.

E.g., where the claim arises under another state’s law and that law expressly provides its own limitations period (wrongful death actions, for example)

Many states have borrowing statutes: provisions that, under certain conditions, instruct courts to apply another state’s statute of limitation

Typically the law of the state in which the cause of action accrued (more on accrual later)

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Borrowing statutes vary by jurisdiction – consult local law

Most borrowing statutes state that the forum state’s limitations period cannot be applied if a shorter limitations period of the state whose law is being borrowed has already expired

Similarly, most borrowing statutes will not permit a longer limitations period to be applied in a forum in which a shorter period has already expired

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Another exception – some states will apply the statute of limitations of the state with the most significant relationship to the cause of action at issue or when the forum state has no substantial interest in the maintenance of the cause of action

Primary reason for this approach is to prevent plaintiffs from being able to forum shop – asserting a claim in a jurisdiction with a more favorable statute of limitations than the state in which the claim arose

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Statute of repose: similar to a statute of limitations in that it bars claims after a certain length of time has passed

However, unlike a statute of limitations, the length of the repose period is determined independently of when the cause of action accrued or the claim was discovered

In some states, a statute of repose can bar a claim even before it has accrued

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Nine states apply statutes of repose that absolutely bar any cause of action after a certain length of time, regardless of whether the claim has accrued or the plaintiff has knowledge of the facts potentially giving rise to a claim

E.g., Alabama prohibits causes of action from being asserted more than 20 years after injury, regardless of “disability, accrual, notice, or discovery.”

E.g., Alaska bars personal injury claims from being asserted more than 10 years after the “last act alleged to have caused the personal injury”

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Four states have declared statutes of repose to be unconstitutional:

Arizona

New Hampshire

North Dakota

Rhode Island

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Statutes of Limitation: Accrual, Tolling, and

Exceptions

Statutes of Limitation: Accrual, Tolling, and Exceptions


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Accrual: Injury Rule v. Discovery Rule

When does the statute of limitations begin to run? Generally, when the cause of action accrues.

Defining accrual varies widely by state, but most jurisdictions use either the injury rule or the discovery rule to determine when the statute of limitation has started to run

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Accrual: Injury Rule v. Discovery Rule

The injury rule: a claim accrues and the statute of limitations begins to run when the plaintiff suffers a legally cognizable injury

The statute begins to run even if the plaintiff has not discovered his injury

The discovery rule: a claim accrues and the statute of limitations begins to run when the plaintiff discovers, or with due diligence should have discovered, the injury

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Accrual: Injury Rule

When has a plaintiff suffered a legally cognizable injury? When each element of the relevant cause of action is present and the plaintiff can adequately plead the claim

In other words, the statute of limitations begins to run upon the occurrence of the last event required to form the elements of the cause of action

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Tort claims: cause of action accrues when –

A wrongful act or breach of a duty occurs; or

With torts where damage is an essential element of the claim, when the plaintiff sustains harm

“Single cause of action rule”: all injuries caused by a single transaction or series of transactions are part of a single cause of action, such that subsequent injury or damages from the same wrongful act generally do not restart the running of the statute of limitations

Exception: “continuous tort” rule

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“Continuous tort” rule: if a wrongful act is continuous or repeated, the statute of limitations runs from the date of each wrong or from the end of the continuing wrongful conduct

There must be continuing unlawful acts, not just continual ramifications from the same initial violation

Plaintiff may recover for all damages that accrued within the statutory period

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Contract claims: cause of action for breach of contract accrues at the time of the breach

NOT at the time when actual damages are sustained as a result of the breach

Under most circumstances, a breach of contract claim accrues at the time when performance or payment under the contract is to occur and one party fails to comply with those obligations

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Even if the time for performance under a contract has not expired, one party’s repudiation of its obligations under the contract may trigger the statute of limitations

The adverse party may –

Treat the repudiation of the contract as a breach, in which case the claim accrues and the statute of limitations begins to run; or

Wait until the time provided in the contract for full and final performance, in which case that party’s claim for breach of contract accrues when the time for final performance has expired

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Accrual: Discovery Rule

Certain jurisdictions apply the discovery rule to postpone the accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action

Two prongs –

1. A plaintiff must know or reasonably should have known that it has been injured; and

The plaintiff must know or reasonably should have known that its injury was proximately caused by the defendant’s actions.

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The discovery rule is an objective standard: the question is not whether the plaintiff actually knew of the injury, but whether a reasonable person, under the circumstances, would know that the injury occurred or that a legal claim might exist

In other words, the statute of limitations begins to run when the plaintiff could have discovered the factual basis for the claim with the exercise of due diligence

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38 states have limitations statutes that incorporate the discovery rule with respect to certain causes of action or types of injury

Rarely available for intentional torts

Commonly applied in product liability or malpractice cases and to claims involving latent or undiscoverable injuries

Some courts use a balancing test to determine whether to apply the discovery rule where they weigh the defendant’s interest in not having to defend against stale claims versus the plaintiff’s interest in having the opportunity to present its case

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Tolling: suspending or stopping the running of a statute of limitations

Lengthens the time for commencing a civil action and protects plaintiffs from a statute of limitations affirmative defense

Reasons for tolling the applicable statute of limitations generally fall into two categories –

Disabilities of the plaintiff

Conduct of the defendant

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Circumstances That May Toll the Applicable Statute of Limitations: Plaintiff’s Incapacity

Incapacity must exist at the time of accrual of the cause of action

If a plaintiff becomes incapacitated after accrual, courts generally hold that the statute continues to run

If a plaintiff asserts two or more disabilities, the one having the longer term is used to determine the period of time in which the statute of limitations is tolled

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Circumstances That May Toll the Applicable Statute of Limitations: Plaintiff’s Incapacity

Infancy: virtually every state will toll the statute of limitations to some extent when the plaintiff is an infant when the cause of action accrues, even where the plaintiff has appointed a legal representative

Incompetency: typically only tolls the statute of limitations in extreme circumstances

Death: in most jurisdictions, does not toll the statute of limitations if the limitations period began to run prior to the death

Imprisonment: does not toll statute of limitations unless tolling expressly provided for by statute

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Circumstances That May Toll the Applicable Statute of Limitations: Conduct of the Defendant

Fraudulent concealment by the defendant of wrongdoing that prevents the plaintiff from discovering that a cause of action has accrued may toll the statute of limitations in some jurisdictions

Tolling lasts as long as the plaintiff’s reliance on defendant’s misrepresentations is reasonable

Objective standard – plaintiff must exercise due diligence

Plaintiff bears the burden of proof on the issue of concealment

Typically requires extraordinary circumstances

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Circumstances That May Toll the Applicable Statute of Limitations: Conduct of the Defendant

What constitutes fraudulent concealment?

An actual misrepresentation of fact that fraudulently conceals the cause of action; or

A failure to disclose material facts when there is a fiduciary or other special duty to speak; and

Intent to prevent inquiry into or knowledge of the wrong or injury that gives rise to the claim

Some states require the fraud to involve moral turpitude on the part of the defendant

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The existence of a putative class action also tolls the running of the statute of limitations, but not the applicable statute of repose

Cal. Pub. Employees’ Retirement Sys. v. ANZ Securities (S. Ct. 2017)

“The object of a statute of repose, to grant complete peace to defendants, supersedes the application of a tolling rule based in equity.”

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“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.”

Federal Rule of Civil Procedure 15(c)

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An amendment to a complaint that “relates back” to the original pleading will be timely even if filed after the statute of limitations has run

Same conduct, transaction, or occurrence

Same injury/damages

Same set of operative facts

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Where an original pleading is dismissed or otherwise fails to state a claim, amendments that occur after the expiration of the limitations period do not relate back

Amendments that add new causes of action do not relate back

Amendments that add new parties create a new cause of action that does not relate back if the new defendant did not receive notice of the suit within the limitations period or the time for service of a complaint

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Statutes of Limitation: Litigation Strategies

Statutes of Limitation: Litigation Strategies


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The statute of limitations is an affirmative defense that must be raised in the defendant’s answer

Federal Rule of Civil Procedure 8(c) states that “[i]n responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: . . . statute of limitations.”

Pleading standards of Rule 8 that apply to complaints apply to defenses

“[A] party must: state in short and plain terms its defenses to each claim asserted against it.”

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Courts have split whether more demanding pleading standard from Bell Atlantic Corp. v. Twombly and Iqbal v. Ashcroft extends to the pleading of affirmative defenses

Some courts say Rule 8(a) (governing complaints) and Rule 8(b) (governing defenses) both require “short and plain” statements in support, so same standard should apply to both

Other courts declined to extend Twombly and Iqbal, because no requirement for defendant to state facts, needs discovery

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Generally, failure to plead an affirmative defense in the answer means that it is waived

However, defendant can amend answer to add omitted defenses –

Within 20 days after it has been served without leave of court

With consent of opposing party

With leave of court, which “shall be freely given when justice so requires”

Even as late at trial, evidence regarding unpleadedaffirmative defense can be considered if introduced without objection

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Supreme Court has held that statute of limitations is not a jurisdictional issue unless Congress has “clearly state[d] that it is.” Musacchio v. United States (S. Ct. 2015).

Plaintiff argued that general five-year statute of limitations during which a federal criminal defendant must be charged was nonwaivable limit on federal subject matter jurisdiction

Supreme Court disagreed, holding that statute of limitations cannot be raised for the first time on appeal and is waived if not raised at the trial court level

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Using the Statute of Limitations to Narrow the Scope of Litigation

Plaintiffs

Avoid making the statute of limitations an issue on the face of a pleading

If there is a limitations issue, try to make it a factual one that can only be resolved at trial

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Using the Statute of Limitations to Narrow the Scope of Litigation

Defendants

Statute of limitations is an affirmative defense – be sure to raise it!

Try to frame statute of limitations issues as legal issues that can be resolved by motion

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Arguing Statute of Limitations Issues in Dispositive Motions Statute of limitations is an issue that can be raised in

a motion to dismiss for failure to state a claim under Rule 12(b)(6)

If dates in complaint show that limitations period has run, without requiring any factual inquiry, plaintiff has failed to adequately state a claim such that dismissal is appropriate

Facts establishing statute of limitations defense must be clear on the face of the complaint

Statute of limitations must bar entire claim

Statute of limitations more frequently addressed in motions for summary judgment

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Statutes of Limitation: Case Studies

Statutes of Limitation: Case Studies


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“No citation may be issued . . . after the expiration of six months following the occurrence of any violation.” Section 9(c) of the OSH Act

Volks Constructors v. Secretary of Labor (D.C. Cir. 2012)

OSHA issued citations to Volks for alleged violations of OSHA’s injury and illness recordkeeping requirements dating back to the 1990’s – during a period spanning prior ownership, faded memories, and witnesses who could no longer be located

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In Volks, OSHA argued that an incorrect entry on an OSHA injury log is a continuing violation that persists until it is corrected and that prevents the statute of limitations from expiring

The D.C. Circuit rejected OSHA’s argument, reasoning that a recordkeeping violation is a discrete act, an occurrence, which triggers the statute of limitations

Citations barred by statute of limitations because issued more than six months from the time the incorrect entries were made

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The Volks court held that the word “occurrence” in Section 9(c) of the OSH Act must be given its plain and natural meaning:

“Like the Supreme Court, we think the word “occurrence” clearly refers to a discrete antecedent event—something that ‘happened’ or ‘came to pass’ ‘in the past.’”

“[T]he lingering effects of an unlawful act is not itself an unlawful act,” and “the mere failure to right a wrong . . . cannot be a continuing wrong which tolls the statute of limitations for if it were, the exception would obliterate the rule.”

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Delek Refining, Ltd. v. Occupational Safety and Health Review Commission (5th Cir. 2016)

Unanimously vacated two OSHA process safety management (PSM) citation items issued to a Delekfacility for alleged safety violations that occurred years prior to its ownership

Second appeals court to reject OSHA’s “continuing violation” theory

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In 2008, OSHA issued citations to Delek under its PSM standard for the alleged failure to resolve recommendations from process hazard analyses (“PHAs”) and compliance audits that were conducted in 1994, 1998, 1999, 2004, and 2005 — all prior to Delek’s acquisition of the refinery

The PSM standard requires employers to conduct a PHA to “identify, evaluate, and control the hazards involved” in covered processes, and then establish procedures to “promptly” address the PHA’s findings, resolve them in a “timely” manner, and document the manner in which they were resolved

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Similarly, employers with processes covered under the PSM standard must conduct compliance audits every three years to “verify that the procedures and practices developed under the standard are adequate and are being followed.”

After the audit has been completed, employers must create a report and “promptly determine and document an appropriate response to each of the findings of the compliance audit, and document that deficiencies have been corrected.”

As with PHAs, the PSM standard does not contain any requirement that every audit finding must be corrected

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In Delek, OSHA argued that Delek’s alleged failures to address the PHA and audit findings conducted by its corporate predecessor were “continuing violations” that would not trigger the OSH Act’s statute of limitations until they were abated

Delek argued that conducting the PHAs and the audit were the “occurrences” that triggered the six-month statute of limitations, meaning that the limitation period had expired years ago and thus OSHA’s citations should be vacated as untimely

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The court agreed with Delek, rejecting OSHA’s efforts to apply the continuing violation doctrine to the PSM standard’s PHA and audit requirements

Held that OSHA’s position was contrary to both the plain language of the OSH Act and the PSM standard, as well as “the basic purposes of a statutory limitations period.”

Also held that OSHA’s interpretation of the language of the six-month limitations period that Congress “deliberately wrote into [the OSH Act].”

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Finally, the Fifth Circuit panel stated that permitting OSHA to issue citations in perpetuity would be “utterly repugnant to the genius of our laws,” reasoning that a strict interpretation of the OSH Act’s six-month statute of limitations in this context would “provide security and stability.”

It would also prevent OSHA from instituting enforcement actions long after the relevant witnesses’ memories had faded and the available evidence had gone stale or disappeared entirely.

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Enacted January 29, 2009

First law signed by President Obama

Overturned Supreme Court Decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007)

Law was retroactive to May 28, 2007, the day before the Supreme Court decision

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The Ledbetter Case

Ledbetter was a former supervisor at a Goodyear tire plant who learned from an anonymous letter that she had been receiving less pay than male counterparts doing the same work for approximately 20 years

Court held statute of limitations for filing a Title VII Charge of discrimination with the EEOC begins to run when an employer makes a decision about the employee’s compensation that is allegedly discriminatory, not each time the employee receives a paycheck affected by the alleged discrimination

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Filing Title VII Charges of discrimination

Must be filed with EEOC or state agency within 300 days of alleged discriminatory act

Time limit is 180 days in those few states that do not have their own EEOC equivalent

Back pay awards limited to 2 years

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The Ledbetter Act

An unlawful employment practice occurs, and the statute of limitations begins to run:

– When a discriminatory compensation decision or other practice is adopted;

– When an individual becomes subject to a discriminatory compensation decision or other practice; or

– When an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

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Takeaway: if one paycheck falls within statute of limitations, entire course of conduct is legally actionable

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Enforcing Statutes of Limitation in Arbitration Proceedings

Courts in several states have determined that general statutes of limitation do not apply in arbitration proceedings unless the parties agree otherwise

In contrast, two states (New York and Georgia) have amended their rules of civil procedure to make general statutes of limitation apply to arbitrations.

Arbitration agreements should be drafted carefully and include language stating that nothing in the agreement shall limit or waive the application of any state or federal statute of limitation, repose, or any other time bar

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Gabelli v. S.E.C. (S. Ct. 2013)

SEC brought enforcement actions against investment advisors, seeking civil penalties for aiding and abetting fraud

Investment Advisers Act makes it illegal for investment advisers to defraud their clients and authorizes SEC to bring enforcement actions

If the SEC seeks civil penalties, general statute of limitations that governs many penalty provisions in U.S. Code requires initiating action “within five years from the date when the claim first accrued.”

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SEC sought civil penalties against two investment advisors in 2008

Complaint alleged that they had aided and abetted investment adviser fraud from 1999 to 2002

Trial court dismissed claim as time-barred, but Second Circuit reversed, accepting the SEC’s argument that because the underlying violations sounded in fraud, the “discovery rule” applied

Statute of limitations did not begin to run until SEC discovered or reasonably could have discovered the fraud

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Other Government “Continuing Violation” Theories Supreme Court held that the five-year limitations

period begins to run when the fraud occurs, not when it is discovered

Court reasoned that its holding was the most natural reading of the statute

“In common parlance a right accrues when it comes into existence.”

Supreme Court also cited the policy justifications behind statute of limitations – “repose, elimination of stale claims, and certainty about a plaintiff’s opportunity for recovery and a defendant’s potential liabilities”

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Supreme Court also held that the “discovery rule” is an exception to the standard injury rule with respect to when a claim accrues and it does not apply to government enforcement actions for civil penalties

Discovery rule exists in part to preserve the claim of parties who have no reason to suspect fraud

U.S. government “is a different kind of plaintiff”

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“Emphasizing the importance of time limits on penalty actions, Chief Justice Marshall admonished that it ‘would be utterly repugnant to the genius of our laws’ if actions for penalties could be brought at any distance of time.”

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Questions?

Rules and Guidelines When Dealing with Statutes of Limitation66

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Notes

Documents

Rules and Guidelines When Dealing With Statute of Limitations · limitation for the following types of claims, among others: Real and personal property claims Tort claims –Personal