Not long ago we published, as a guest post, a 50-state survey of state tolling statutes that governed whether, and under what circumstances, actions dismissed on a non-merits basis could be refiled notwithstanding the running of the applicable statute of limitations in the interim.
Bexis had never really thought much about these kinds of statutes before – but in preparing the post for publication, he did. That led to an idea.
Bexis being Bexis, he looked up the Delaware statute cited in the post, Del. Code Ann. tit. 10 §8118. That statute provides:
(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 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.
There’s nothing specific, but the highlighted phrase, “in this chapter,” suggests that the original action, as to which tolling is subsequently allowed, had to have been filed in a Delaware court, since statutes of limitations are generally procedural, and an action filed in a different state’s court would not be “commenced within the time limited therefor in this chapter.”
It turns out there are actually cases addressing that issue. Back in 1956 (the year Bexis was born), a Delaware court interpreted a statutory predecessor in precisely this fashion. That statute, like the current §8118(a), “state[d] if an action brought within the period prescribed by law is dismissed for any reason other than upon the merits, a new action may be commenced within a specified time.” Sorensen v. Overland Corp., 142 F. Supp. 354, 362 (D. Del. 1956), aff’d, 242 F.2d 70 (3d Cir. 1957). As to the scope of tolling, Sorenson held that it did not reach cases not originally filed in a Delaware court (state or federal):
The argument made to embrace all courts within a state − that the theory of [the statute] mitigates against the harshness of the statute of limitation and thereby requires a liberality of approach − does not encompass prior actions arising out of foreign courts, state or federal. Where a difference is one of kind and not degree, liberality of construction is not an absolute tool. The Delaware statute from its plain meaning leads me to believe its provisions were not intended to cover actions commenced beyond the boundaries of the state. I find therefore, under §8117 the bar of limitation is not avoided by another action failing other than upon the merits in another jurisdiction between the same parties on the same cause of action.
Id. at 363 (footnote omitted) (emphasis added). See Salsburg v. Pioneer Gen-E-Motor Corp., 1962 WL 69576, at *2 (Del. Ch. June 13, 1962) (“It has generally been held under similar savings statutes that they are not applicable in cases where the original action is brought in a foreign jurisdiction.”).
That this statute applies to actions originally brought in Delaware federal court was confirmed in Howmet Corp. v. City of Wilmington, 285 A.2d 423, 426 (Del. Super. 1971)
This is not a situation where the first action was intentionally brought in the wrong court. . . . As a result, the error in bringing the action in the Federal District Court for the District of Delaware, which lacked jurisdiction, did not prevent the action from being “duly commenced.”
Id. at 426. Another relevant Delaware case is an exception that distinguished Sorenson and Howmet and allowed tolling where an action had originally been filed in Pennsylvania “in the belief that [an automobile] accident occurred in Pennsylvania” when in fact “the accident occurred in Delaware.” Leavy v. Saunders, 319 A.2d 44, 45 (Del. Super. 1974). The accident had occurred on I-95 at the Pennsylvania-Delaware border. Id. Because the plaintiff’s attorney “apparently in good faith believed that the accident occurred in Pennsylvania,” id. at 48, the court cut the plaintiff a break under the Delaware tolling statute and allowed refiling.
Get to the point. Why should anybody care about this obscure legal issue?
Here’s the reason: personal jurisdiction under Daimler AG v. Bauman, 571 U.S. 117 (2014), and Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017).
Because of Bauman and BMS, lots of litigation tourists – whose lawsuits are, as Howmet put it, “intentionally brought in the wrong court” – will be finding themselves out of court on jurisdictional grounds. More of our clients are incorporated, and are thus “at home,” in Delaware than in any other state. Litigation tourists that Bauman/BMS will be putting out of the courts in which they erroneously filed will probably be looking to refile somewhere else, and will often have to assert one of these tolling statutes to avoid the statute of limitations in the new courts where they file. While such jurisdictionally-driven refilings could occur in any state, Delaware is a particularly likely forum.
Interpreting state tolling statutes – as Delaware has – not to apply to actions initially (and deliberately) misfiled in other states by litigation tourists can be another powerful deterrent to litigation tourism.
Right now, the law we cited above means that all the litigation tourists who filed actions against Delaware corporations in California, Missouri, or Illinois, can’t refile in Delaware. Maybe they can refile in their home states, where they should have filed in the first place, but only if their home states’ tolling statutes apply (or are interpreted to apply) to dismissed actions that were deliberately filed in an incorrect forum.
Unless a particular state’s tolling statute specifically provides for extraterritorial application, defense counsel should argue – vociferously – against such an interpretation. A litigation tourist who deliberately filed in an erroneous jurisdiction, seeking some sort of tactical advantage, is not the sort of innocent victim of some non-merits circumstance that such statutes were intended to help.
Going forward, interpretation of tolling statutes to preclude extraterritorial effect could serve as a powerful disincentive to still more litigation tourism. A Delaware-style interpretation removes the net from any plaintiff considering a stroll on the tightrope of litigation tourism. Such plaintiffs would find themselves in the same position as litigation tourists who currently reside in Alabama, Florida, Hawai’i, North Dakota, South Carolina and South Dakota – not having any home-state tolling to fall back on in the event of a personal jurisdictional misadventure.
Needless to say, we would also look favorably on efforts to amend tolling statutes to provide expressly that they do not extend any benefit to litigation tourists.
In any event, defense counsel who succeed in defeating litigation tourist plaintiffs should be ready to examine tolling statutes for extraterritorial effect whenever such plaintiffs refile. Those plaintiffs’ deliberately bringing their actions initially in an incorrect state may mean they are barred even by their home state’s statute of limitations, depending on how the relevant tolling statute applies.