How Will COVID-19 Impact Statutes of Limitations?
Statutes of limitations require lawsuits to be filed within a set period of time. With the disruption COVID-19 is having on businesses, travel, and everyday life, potential plaintiffs may find it harder to meet the standard deadlines. And when cases are filed, litigants may find themselves embroiled in disputes about whether the current pandemic provides grounds for statutes of limitations to be tolled or extended.
Some jurisdictions have sought to provide a ready answer. Governors, courts, or judicial councils in numerous states have taken actions intended to toll statutes of limitations. In New York, for example, the governor has issued a series of executive orders tolling all state statutes of limitations. Similarly, in California, the judicial council adopted an emergency rule to toll limitations periods for civil actions under authority given to it by executive order.
While state tolling orders provide a measure of guidance, they do not necessarily provide a complete answer. The orders tolling statutes of limitations could themselves be challenged. New York law expressly recognizes that the governor’s power to toll statute of limitations may be subject to state or federal constitutional constraints. When New York’s governor tolled statutes of limitations in the wake of the attacks on September 11, 2001, a criminal defendant brought a constitutional challenge to the tolling order. That challenged proved unsuccessful, but the decision in that case does not foreclose the possibility of future challenges.
Non-constitutional challenges to tolling orders are also possible. New York law, for example, authorizes the governor to “temporarily suspend” limitations provisions only “if compliance with such provisions would prevent, hinder, or delay action necessary to cope with [a] disaster or if necessary to assist or aid in coping with such a disaster.” One can imagine defendants challenging tolling orders issued under that provision as going beyond its confines, particularly if the tolling continues for prolonged periods or after the exigency appears to wane. Or defendants might argue that a more specific statute exempts a particular cause of action from general tolling provisions.
While some state officials have issued rules or orders to toll state statutes of limitations, officials in other states have not. Congress likewise has not yet enacted legislation acting on calls to extend statutes of limitations for federal civil actions. As a result, parties to actions brought under federal law, or the law of states that have not made express provision for tolling, are likely to face questions as to whether equitable tolling is available.
Traditionally, the doctrine of equitable tolling permits a court to pause a statutory time limit where a plaintiff pursues his rights diligently but some extraordinary circumstance prevents him from bringing a timely action. Recent decisions suggest that, where tolling is available, COVID-19 may provide grounds for equitable tolling. Some courts have recognized that the current pandemic situation constitutes an extraordinary circumstance that justifies equitable tolling in some cases. But courts have also recognized that the mere existence of COVID-19 does not warrant equitable tolling in all cases. A plaintiff must show that the pandemic presented an obstacle to filing a timely lawsuit in his particular case, such as by preventing access to necessary legal resources, witnesses, or evidence. And, as in non-pandemic times, a plaintiff must demonstrate that he was diligent in attempting to file a timely lawsuit.
Plaintiffs should be aware, moreover, that equitable tolling may not be available in some types of cases, regardless of the circumstances. Congress and state legislatures sometimes place time limits on actions that are not subject to equitable tolling, called a “statute of repose.” The Securities Act of 1933, for instance, places an absolute three-year limit on filing Section 11 actions over material misstatements made in securities registration statements. The COVID-19 pandemic likely would not excuse failure to file within the time provided by such a statute.
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