Statute of Limitations in Civil Claims – An Overview of Time Deadlines and Procedural Requirements Necessary to Preserve Civil Claims and Protect the Client from Case Dismissal
This is the first in a series of LegalBevy blog posts about so-called “Case Killers,” those fatal procedural defects that can sink a case faster than a North Atlantic iceberg. We spoke with numerous legal professionals, who were of the unanimous opinion that there are three distinct “Case Killers”: 1) Failure to file a case within the required statute of limitations; 2) Failure to file a timely Response to a Motion for Summary Judgment; and 3) Failure to appeal a case in a timely manner.
“Motion to Dismiss granted for failure to bring claims within the statue of limitations"
These words, when uttered from the bench, strike fear in the heart of the legal professional on the wrong side of the ruling. And usually makes them wonder if their legal malpractice insurance is in place and paid up.
So what is a “Statute of Limitations” (SOL) and why does it have such an impact? Black’s Law Dictionary defines a statute of limitations as the “[T]ime frame set by legislation where affected parties need to take action to enforce rights or seek redress after injury or damage.” lawsiteblog.com
Simply put, an SOL is the time by which a claim must be filed before it is time-barred by law. If you don’t file (and sometimes serve; more on that later), your case within the prescribed time period, you lose your legal remedies. Period. Full stop. A bitter pill for you and your client. But, like so many other facets in the law, the specific factual circumstances surrounding the action and the type of claim will dictate whether a case is precluded from being heard based on SOL issues. nlrg.com/civil-procedure
The statute of limitation is set by statute for each state and can vary widely depending on the type of action. In some states, the SOL for defamation or civil assault claims is a relatively short one-year period. But, in instances of breach of contract or fraud, many states impose longer SOL periods. For example, in Texas the SOL for a breach of contract action is four years. For defamation cases, it is one year, a much shorter time frame and a relatively condensed period of time for the practitioner to do his/her case diligence. ALWAYS check the SOLs in the state in which you are filing your petition to determine the SOL for EVERY claim you intend to file. This should be one of the first items on your pre-filing checklist.
Another SOL consideration is if your jurisdiction requires service of process before the SOL expires. Imagine the following scenario: An out-of-state, referring attorney contacts you to serve as local counsel in a personal injury auto-collision claim where the plaintiff suffered significant injuries and the defendant’s negligence is clear. Based on venue principles, the case must be filed in your home jurisdiction. The out-of-state lawyer will pay you a generous referral fee from the contingency fee arrangement with the client. The only issue is that your home jurisdiction has a two-year SOL for tort/negligence actions and the referring attorney has contacted you two weeks before the SOL expires. Sounds like easy money, right? File the case within two weeks and preserve the SOL so you can negotiate a big settlement. Easy.
Think again. Some states require not only that a case be filed before the SOL runs, but also that the defendant be served with process before the end of the SOL period. What the referring attorney didn’t tell you was that settlement negotiations had been exhausted with no offer and that service on the defendant would be difficult because he can’t be located. All of a sudden this easy money PI case has turned into a malpractice threat because you likely cannot get the defendant served before the SOL ends. The moral of the story: Do your research on your filing state’s SOL requirements for the specific claim you intend to file and always get the full backstory on the case history before you agree to jump in on a case with an 11th-hour SOL. blawgsearch.justia.co
Although SOLs can be a death penalty, in certain situations the SOL can be tolled (a legal term for “paused” or “delayed”) if the action giving rise to the claim could not be discovered by the filing party until later. For example, if two parties enter into an agreement for the sale of a business in January and the buyer doesn’t discover until November of the same year that the seller had “cooked the books” and committed fraud to induce the sale, in some jurisdictions the SOL would not start until the buyer discovered the fraud in November. Again, these situations are dictated by state statute and common law, so always research your jurisdiction when trying to determine the SOL of any given case.
Although universally dreaded as potential “Case Killer” by legal professionals, SOL risk can be mitigated with thorough research and extreme attention to the facts surrounding your case.
*** The author and LegalBevy are not responsible if information in this blog posting is not accurate, complete, or current. The material on this blog posting is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this blog posting is at your own risk. The contents of this blog posting are intended to convey general information only and not to provide legal advice or opinions. The contents of this blog posting, and the posting and viewing of the information on this blog, should not be construed as, and should not be relied upon for, legal or procedural advice in any particular circumstance or fact situation. No action should be taken in reliance on the information contained on this blog posting and the author and LegalBevy disclaim all liability, to the fullest extent permitted by law, with respect to actions taken or not taken based on any or all of the contents of this blog posting. An attorney should be contacted for advice on specific legal issues.