SCOTUS Gives Pendent State Law Claims New Life in Artis v. District of Columbia

Bruce M. Gorman, Jr.

Recently, in Artis v. District of Columbia, the Supreme Court ruled on the nagging question of how long a plaintiff has to refile a pendent state law claim in state court after it has been dismissed by a federal court. The answer: longer than you would have thought.

The controversy arose from ambiguity over the wording of 28 U.S.C. § 1367(d), which provides that the “period of limitations for” refiling in state court a state claim that has been dismissed by a federal court after the independent federal claims have been resolved “shall be tolled while the claim is pending [in federal court] and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”

Two schools of thought had emerged since the statute’s enactment in 1990. One, the “stop the clock” theory, held that the state statute of limitations ceases to run on the day the federal complaint is filed, and resumes where it left off on the day the federal case is dismissed. The second, the “grace period” theory, stated that the statute of limitations continues to run during the pendency of the federal case, and the plaintiff has only whatever time is left to refile her claim, or 30 days, whichever is longer.

Justice Ginsburg, writing for the majority in which Justices Breyer, Sotomayor, Kagan, and Chief Justice Roberts joined, explained why the “stop the clock” theory carried the day. The Court noted several federal statutes illustrating when a grace period is provided, and when it is not. Justice Ginsburg then chided the dissent “for all its mighty strivings,” for failing to identify “even one federal statute that fits the bill, i.e., a federal statute that says ‘tolled’ but means something other than ‘suspended,’ or ‘paused,’ or ‘stopped.’” Opinion at 10. The Court then quickly dismissed the potentially troublesome case Hardin v. Straub, 490 U.S. 536 (1989)—in which the Court characterized a state statute providing a one-year grace period as “tolling” or “suspend[ing]” the limitations period “until one year after the disability has been removed”—as “a feather on the scale against the weight of decisions in which ‘tolling’ a statute of limitations signals stopping the clock.” Id. at 11.

Justice Gorsuch filed a dissent in which Justices Kennedy, Thomas, and Alito joined. Among his many arguments, Justice Gorsuch objected to “forc[ing] state courts to entertain claims that aren’t just stale by days or weeks under state law, but stale by months or even many years too.” To illustrate, he posited the following real-life example:

So, for example, take a plaintiff who files suit in federal court shortly after a six year state law limitations period begins running and the litigation lasts six years before it’s finally dismissed. Under the Court’s approach, federal law will now promise the plaintiff nearly six years more (plus those stray 30 days again) to refile his claim in state court. Neither is this illustration fiction; it is drawn from the facts of Berke v. Buckley Broadcasting Corp., 821 A.2d 118, 121 (N.J. Super. Ct. App. Div. 2003). See also Krause v. Textron Fin. Corp., 2007 WL 8054628, *1-2 (Fla. Cir. Ct. 2007); Brief for State of Wisconsin et al. as Amici Curiae 20-21 (offering many more examples).

Dissent at 17 (Gorsuch, J., dissenting).

So, to summarize the Berke example cited by Justice Gorsuch:

6 years (fed. court) + 30 days + 5.99 years (remaining SOL) = approx. 12 years.

By far, the most interesting argument of Gorsuch’s dissent is where he recounts the ancient common-law principle of “journey’s account.” This doctrine was described in 1642 as “a dayes journey is accounted in law 20 miles,” as “a reasonable time … within which time wheresoever the court of justice sate in England, the party … wheresoever he dwelt in England … might … by the said account of dayes journies appeare in court.” Dissent at 5 (citing E. Coke, The Second Part of the Institutes of the Laws of England 567 (1642) (reprint 1797)). Seizing upon this historical backdrop, Justice Gorsuch opined that section 1367(d)’s “tolling” provision merely “seeks to provide the plaintiff who finds her case dismissed because she filed in the wrong court a reasonable grace period to journey to the right court to refile. No more and no less.” Id.

Not surprisingly, the majority gave the journey’s account argument short shrift, noting that there was no evidence Congress had this doctrine in mind when it drafted 1367(d). Opinion, at 14 n.11. Indeed, Justice Gorsuch’s dissertation on the logistical challenges faced by medieval litigants and their overland journey to the “correct” court, while interesting, has little relevance to the modern litigant, whose quest typically involves walking across the street. Or around the corner. Maybe across town. A $5.00 Uber ride, at best. Still, for a civil procedure debate that can only have captivated the very few, the Artis decision has practical implications to litigants with state claims pending in federal courts.

As a result of this decision, plaintiffs in New Jersey should be aware that their day in court will not end 30 days after the federal court dismisses their pendent state law claims. Similarly, defendants must be prepared to defend against any state law claims potentially years after the federal court has dismissed a case and its pendent state law claims; they cannot breathe a sigh of relief on the 31st day after dismissal.

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