The Philadelphia diaspora has begun. A confluence of factors is responsible, such as the “under New management” (pun intended) sign on the Complex Litigation Center, the changed, less plaintiff-friendly procedures that have been put in place (discussed here), and a couple of hard-fought diversity of citizenship wins taking major defendants out of the Philadelphia mix, Johnson v. Smithkline Beecham Corp., 724 F.3d 337 (3d Cir. 2013) (lauded here), and Moore v. Johnson & Johnson, 2013 WL 5298573 (E.D. Pa. Sept. 20, 2013). The new precedent has led to a spate of removals (58 “trial documents” on Westlaw citing Johnson), a phenomenon we’ve both anticipated and discussed . Put together, all these factors have prompted tactical decisions by a growing number of litigation tourist plaintiffs to voluntarily dismiss/discontinue their Philadelphia actions altogether. Sometimes these voluntary dismissals precede any attempt at removal. See Benge v. SmithKline Beecham Corp., 2013 WL 5278220, at *1 (E.D. Pa. Sept. 19, 2013) (mentioning nine cases). Sometimes these discontinuances occur in federal court after removal has occurred. See Yazzie v. GlaxoSmithKline LLC, 2013 WL 3993455, at *1-2 (E.D. Pa. Aug. 5, 2013).
We suspect that these tourist plaintiffs, once rousted from Philadelphia, are not simply going to go away. Rather, they will probably try to file their suits again, somewhere else, possibly a defendant’s true home state, perhaps some other perceived beneficial jurisdiction or – heaven forbid! – in a plaintiff’s own home state. Should any new filings occur, some of our readers may encounter these refugee lawsuits. So we’re pointing out what we think defense counsel in other jurisdictions need to know about Pennsylvania law and voluntary dismissals (also called “nonsuits”).
A lawsuit once filed in Pennsylvania state court, but then voluntarily discontinued, does not toll the statute of limitations (two years for personal injury). Not only that, Pennsylvania’s saving statute, which otherwise tolls the statute of limitations for actions dismissed for reasons other than on the merits, is expressly inapplicable to “[a]n action or proceeding terminated by a voluntary nonsuit, [or] discontinuance.” 42 Pa. C.S.A. §5535(a)(2). So the legislature has weighed in as well. What this means is that the litigation tourists, in voluntarily discontinuing their Pennsylvania actions (without prejudice, of course), may well end up outsmarting themselves.
Here’s the primary case that says so. Williams Studio Division v. Nationwide Mutual Fire Insurance Co., 550 A.2d 1333 (Pa. Super. 1988). In Williams the plaintiff sought a voluntary nonsuit of its first-filed action, for unstated reasons, and then refiled and sought to prosecute a second lawsuit. Not so fast, said our Superior Court (back when this statewide intermediate appellate court wasn’t as plaintiff friendly as today), your voluntary discontinuance of the first action effectively nullified that case. For statute of limitations purposes, it is as if the voluntarily nonsuited case “never existed”:
[W]e conclude that, when a plaintiff takes a voluntary nonsuit, it is as if the original suit was never initiated. Logically, since the original complaint is treated as if it never existed, the statute of limitations is not tolled by the filing of a complaint subsequently dismissed without prejudice.
Id. at 1335 (citation and quotation marks omitted). Thus, if a case from the Philadelphia diaspora was sitting around for years here in our Court of Common Pleas (a not uncommon occurrence), the voluntary dismissal means that there’s no tolling of the statute of limitations for that period.
Interestingly, the court in Williams found support for its holding in analogous decisions interpreting federal rules:
To determine what effect, if any, a voluntary nonsuit has upon the running of a statute of limitation, we must first determine the result of a voluntary nonsuit. Although this is a case of first impression under Pennsylvania law, Federal law is well settled, and numerous Federal cases hold that dismissal without prejudice operates to leave the parties as if no action had been brought at all. While not expressly stating that a voluntary nonsuit or discontinuance operates to leave the parties as if no action had been filed, Pennsylvania case law reflects a similar result.
Id. (quotation marks and citations to numerous federal cases omitted). Given that federal and Pennsylvania law both hold that voluntary dismissals nullify prior actions for statute of limitations purposes, it shouldn’t matter whether the plaintiff dismissed in state court prior to removal (as in Benge) or in federal court after removal (as in Yazzie). In either case, if the period of time the case was pending in Philadelphia puts the action beyond the relevant statute of limitations (don’t forget borrowing statutes, either), the action is time-barred and should be dismissed, as in Williams. 550 A.2d at 1336 (affirming judgment on the pleadings against second action). See Marra v. Smithkline Beecham Corp., 789 A.2d 704, 706 (Pa. Super. 2001) (“[o]nce a case has been discontinued, the plaintiff may commence a second action . . . so long as the statute of limitations on the second action has not expired”) (following Williams).
Subsequent Pennsylvania cases dismissing voluntarily discontinued cases on the statute of limitations under Williams include: Atlantic Pier Associates, LLC v. Boardakan Restaurant Partners, L.P., 2011 WL 3268129, at *7 (E.D. Pa. July 29, 2011) (“the filing of a prior [Pennsylvania] action will not toll the limitations period for a subsequently filed state action where the first action was terminated by a discontinuance”); Stout v. Selective Way Insurance Co., 2010 WL 2034637 (Pa. C.P. Philadelphia Co. May 3, 2010) (no pagination), aff’d, 23 A.3d 598 (Pa. Super. 2010); American Continental Properties, Inc. v. Lynn, 2003 WL 2152487, at *9-10 (Pa. C.P. Philadelphia Co. April 16, 2003) (plaintiff’s first, voluntarily dismissed action was in New York), aff’d, 855 A.2d 125 (Pa. Super. 2004); Grove v. Scott, 17 Pa. D. & C.4th 212, 216 (Pa. C.P. York Co. 1992) (prior voluntary dismissal of third-party claim).
In our view these out-of-state, litigation tourist plaintiffs chose voluntarily to file in the Pennsylvania forum. In pursuit of litigation advantages to which they were not entitled, they willingly submitted themselves to Pennsylvania rules and procedures. If in further pursuit of litigation advantage, they voluntarily dismiss those actions and they later turn out to be time barred, well, they made their jurisprudential beds, so let them sleep in them.