Statute Of Limitations

Geographical pride.  A feeling of community.  Belonging.  Being one of the locals.  We all experience it to some degree.  Sometimes you take it with you.  Like wearing your favorite Roll Tide t-shirt while listening to jazz in New Orleans.  While Pennsylvanians may not take kindly to out-of-state sports jerseys, they welcome Maine lobster and Delaware

We have always had a soft spot for zebras.   They are the equine world’s version of some of our favorite acquaintances — the ones who always dress a little outlandishly and always stand out from the crowd. (Fun facts:   1. Although most zebras have black stripes on a white background, a white-on-black specimen shows up

This weekend, we are traveling to Nashville, where, decades ago, we lived for a couple of years during a period of wanderlust. Nashville was to be a brief stop-off on a cross-country driving odyssey.  But we never got any farther down the road, leaving Nashville only to reverse course and return to college (to our

We don’t often get to discuss decisions from Maine. In fact, a quick spin through the blog and you’ll see Maine really only comes up in various canvases or surveys of state law. We don’t dislike the state. We love the lobster — that they take very seriously. We can’t say we love the winters

We thought we understood statutes of limitations and choice-of-law rules in New Jersey.  Until yesterday.  That was when we read the New Jersey Supreme Court’s opinion in McCarrell v. Hoffmann-La Roche, Inc., No. 076524, 2017 WL 344449 (N.J. Jan. 24, 2017), which unhinged that state’s statute of limitations and choice-of-law jurisprudence from its own precedent and placed statutes of limitations in a special class without much explanation.  And the court did all of this for the stated purpose of preserving plaintiffs’ claims and not “discriminating” against an out-of-state plaintiff’s ability to sue a New Jersey company in New Jersey, after the suit would be barred in the plaintiff’s home state.

How did we get here? Well, this is a New Jersey Accutane case, which tells you that it was contentious, as most things seem to be in that multi-county proceeding.  Other than that, the facts in McCarrell are fairly typical—an out-of-state plaintiff (in this case a fellow from Alabama) who was prescribed a drug in his home state, used the drug in his home state, experienced alleged complications in his home state, and received medical treatment in his home state sued the drug’s manufacturer where the company is incorporated—in this case, New Jersey. McCarrell, at *3.

The rub in McCarrell was that the plaintiff’s claim was time barred under Alabama’s statute of limitations, but not under New Jersey’s statute of limitations, which includes a discovery rule.  The choice of law therefore determined the outcome, which led the parties to contest the issue hotly in the trial court, the intermediate appellate court, and eventually the New Jersey Supreme Court.

Each court applied different rules, which is why this case is so interesting and why the Supreme Court’s opinion is so odd. We have long understood that the choice of forum does not determine the applicable substantive law.  Sure, the forum’s procedural law applies, but the substantive law is determined by applying the forum state’s choice-of-law rules.


Continue Reading New Jersey Supreme Court Turns Back The Clock on Statute of Limitations

As we head into December, there is quite a bit of attention being paid to when sales start, when shipping occurs, and when gifts are given.  Were one concerned with such an inquiry, one might imagine a few different points in time when gifting might commence.  For purposes of our space-filling exercise, assume the putative gift is tangible, labeled to identify the intended recipient, wrapped such that it must be opened to reveal its contents, and left in a place where the intended recipient is expected to retrieve it.  Has gifting commenced when the giftor leaves the gift in this place, even if it might be removed before the giftee assumes possession?  Need there be some last clear chance when the gift can no longer be removed or replaced with something else before the giftee claims it?  Must there be a direction like “open it” to signal an exchange?  What if the gift has labeling that states that it cannot be opened for another six weeks or so?  If the “gift” is merely a box containing a note that an actual gift will be forthcoming, then was there a gift at all?  What if we droned on and on?

Goldthrip v. DePuy Orthopaedics, Inc., __ Fed. Appx. __, 2016 WL 6933450 (11th Cir. Dec. 28, 2016), involves these exact same issues if one can consider a product liability lawsuit a gift and an Alabama courthouse a suitable place for receiving such a gift.  In Goldthrip, the plaintiff alleged that her implanted prosthetic hip manufactured by defendants injured her on December 25, 2013.  As this was a day when many Alabamians were exchanging gifts, we can guess that the timing of the injury was easy to identify.  The plaintiff filed her case on December 23, 2015, two days before the statute expired and another day of mass gifting.  Her complaint, however, came with a curious note, indicating that she was “‘withholding service of process’ in an effort to avoid expenses and facilitate settlement discussions.” Id. at *1.  The complaint was served on the defendant (without a summons) a week later, a summons was issued about six weeks after that, and the defendant was served with the summons sometime later.  (If you are wondering, Fed. R. Civ. P. 4(c) provides that “A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.”  Service of the summons and complaint together, absent waiver, is necessary to get things started in federal court.)


Continue Reading Dispensing With Commencing: A Statute of Limitations Gift

As we hurtle into the holiday season, we are reminded that good things often come in small packages. That certainly was the case in a one-and-a-half-page opinion that the Ninth Circuit filed last week in a prescription antidepressant case.  The case is Plumlee v. Pfizer, Inc., No. 14-16924, 2016 WL 6610223 (9th Cir. No. 9, 2016), and the lesson was that the statute of limitations can be a powerful thing.

The facts are pretty simple: The plaintiff alleged that she stopped taking Zoloft in June 2008 because she believed it was ineffective “contrary to [the manufacturer’s] representations.”  But she did not file her class action lawsuit until more than four years later. Id. at *1.  That sounds to us as though the plaintiff filed after the expiration of any applicable statute of limitations, and it sounded that way to the district court too, leading to an order dismissing the case.

The Ninth Circuit affirmed, holding that California’s discovery rule did not extend the plaintiff’s time to sue. The core holding is as follows:

Under the discovery rule, [Plaintiff’s] failure to allege any facts that she exercised reasonable diligence between June 2008 and May 2012, or that she was unable to discovery the factual basis for her claims between June 2008 and May 2012 despite exercising reasonable diligence, constitutes a sufficient basis for affirming the district court’s dismissal with prejudice . . . .”

Id.  This may seem like a routine result at first blush, but let’s unpack this a little bit.  First, we find it interesting that the district court dismissed the plaintiff’s complaint under Rule 12(b)(6).  We do not often see courts ruling on statutes of limitations on the pleadings, although there is no reason why discovery should be necessary when the defense is evident on the face of the complaint.  Here, the plaintiff alleged that she believed the product was ineffective in June 2008 despite “representations to the contrary.” Id.  In other words, she suspected wrongdoing, which caused her claim to accrue under any application of the discovery rule.  From that point, the clock was ticking.


Continue Reading Don’t Underestimate the Statute of Limitations

Today’s case is also about statute of limitations, but we thought adding that to the title would guarantee nobody read any further. None of these are what we’d call “page-turning” – or maybe in the blog world it should be “scroll-worthy” — topics. But, any one of them can be a game changer.   When they combine to lead to a dismissal in circumstances that our readers may find themselves in, we think they are worth a mention.  But we’ll make it quick.

As is so often the case, plaintiffs’ counsel gathered their clients and filed a single mass action lumping together plaintiffs from all over the country.  Jaeger v. Howmedica Osteonics Corp., 2016 U.S. Dist. LEXIS 16493 at *7 (N.D. Cal. Feb. 10, 2016).  The defendant, again in a fairly common response, moved to sever the individual misjoined cases and to transfer them to plaintiffs’ home districts. Id. at *8.  Defendant’s motion was granted.  The original misjoined complaint was filed in the Southern District of Illinois. Defendant is a New Jersey corporation. Plaintiff Jaeger resides in California, where she also received the medical treatment at issue in the case.  Id. at *17.  Plaintiff Jaeger’s case was therefore transferred to California.


Continue Reading Personal Jurisdiction and Choice of Law