Sign in to follow this  
usagi555

Does your state toll the statute of limitations during pending actions?

Recommended Posts

Here is a thread for people to post about whether or not their states toll the statute of limitations during pending actions in courts.  I'm in New Mexico and have never had to deal with such a question, but did just stumble across this:

 

http://scholar.google.com/scholar_case?case=1671844755915110813&q=res+judicata+merits+voluntary+dismissal+with+prejudice&hl=en&as_sdt=4,32

 

In deciding this case, we must necessarily decide whether the statute of limitations is tolled by a suit which is dismissed without prejudice, or whether we treat a dismissal without prejudice as actually leaving the situation as though suit had never been brought and the statute of limitations never tolled.

.

.

.

After a consideration of the purpose and policies underlying Rule 41, we adopt the view that even though the filing of a suit ordinarily tolls the applicable limitations period, when an action is dismissed 1245*1245 without prejudice because of a failure to prosecute, the interruption is considered as never having occurred.

.

.

.

As the court stated in Moore v. St. Louis Music Supply Co., Inc., 539 F.2d 1191 (8th Cir.1976), we hold that a dismissal without prejudice operates to leave the parties as if no action had been brought at all. Following such dismissal the statute of limitations is deemed not to have been suspended during the period in which the suit was pending.

 

A party who has slept on his rights should not be permitted to harass the opposing party with a pending action for an unreasonable time. Rule 41(e) specifically addresses this concern. Holding that a Rule 41( B)dismissal without prejudice tolls the statute for the time the case was pending could conceivably extend the time for bringing suit indefinitely; the plaintiff could continuously refile but never act to bring the case to its conclusion. Furthermore, the courts should not distinguish between a plaintiff who takes no action before the limitations period expires and a plaintiff who files a complaint before the period expires but who thereafter takes no action. A plaintiff who files near the end of the limitations period benefits from being able to prosecute his claim after the period has expired, but if he fails to take advantage of that opportunity, and suffers dismissal for failure to prosecute, there is no reason to let him have an extended period in which to sue.

 

And this:

 

http://scholar.google.com/scholar_case?case=14964010928788191273&q=res+judicata+merits+voluntary+dismissal+with+prejudice&hl=en&as_sdt=4,32

 

In making this argument, Plaintiff relies on King v. Lujan, 98 N.M. 179, 646 P.2d 1243 (1982). Our Supreme Court in King held that when a case is dismissed without prejudice, it "operates to leave the parties as if no action had been brought at all." Id. at 181, 646 P.2d at 1245. Thus, "[f]ollowing such [a] dismissal the statute of limitations is deemed not to have been suspended during the period in which the suit was pending." Id. If the statute of limitations runs before the complaint is re-filed, the case must be dismissed as being outside the statute of limitations.

We do not believe that King is applicable here. As we pointed out in the second calendar notice, the rules of civil procedure regarding involuntary dismissals have been substantially changed since the decision in King. Prior to the change, if a case was dismissed for lack of prosecution, a new complaint was required to be filed to place the matter back on the court's docket. See Gathman-Matotan Architects & Planners, Inc. v. State, Dep't of Fin. & Admin., 109 N.M. 492, 787 P.2d 411 (1990). The new rules, however, allow for the reinstatement of a case that has been dismissed without prejudice for lack of prosecution upon a showing of good cause. NMRA 1-041(E)(2). Thus, a new complaint need not be filed in order to proceed. A party need only move for reinstatement of the case and show good cause for the lack of action in the case. Vigil v. Thriftway Mktg. Corp., 117 N.M. 176, 179-80, 870 P.2d 138, 141-42 (Ct.App.1994). To "reinstate a case" means that the case is simply reactivated at the same point in the proceedings where it was dismissed. See Black's Law Dictionary 1287 (6th ed. 1990). Because a new complaint is not filed and the case is simply reactivated, there is no problem with the running of the statute of limitations. Cf. Baca v. Atchison, Topeka & Santa Fe Ry. Corp., 121 N.M. 734, 735, 918 P.2d 13, 14 (Ct.App.), cert. quashed, 121 N.M. 783, 918 P.2d 369 (1996).

 

 

 

Conclusion:  If a case is dismissed without prejudice, it appears that the SOL is tolled in the case where that very same case is reinstated, but it is not tolled if a new case is filed.  At least that's how I read it. So, if you're in NM, and you don't get served, the courts here will clear the dockets and start dismissing cases due to a lack of prosecution.  Collection attorneys will sometimes try to get the case reinstated by showing "good cause," so if they filed close to the SOL here in NM, you may be SOL on your SOL defense.  On the other hand, if they are forced to file a new case, They'll be SOL should you bring up an SOL defense. 

 

Important Edit!  I haven't yet tracked down the case, but I saw something that stated that King v Lujan only applies to dismissals that are due to a lack of prosecution, so if you are in NM, and the plaintiff dismisses against you, LOOK INTO THIS before you use SOL as a defense if they refile!

  • Like 1

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.
Sign in to follow this