Wednesday, December 17, 2014

Statute of Limitations and Appeals

Is the statute of limitations tolled by the filing of an appeal?  This was the issue raised yesterday in Hudson v. Lowe's located here.  It is a rather complicated fact pattern.  The short version is that first complaint filed by Hudson was dismissed without prejudice initially by the trial court and was appealed.  The decision to dismiss was affirmed.  A second complaint was filed then after the statute of limitations ran.  The Plaintiff's attorney argued the statute of limitations was tolled by the appeal.  Lowe's argued that the statute was only tolled by the 120 time limit for service of process on the original complaint.  The trial court dismissed the second complaint finding the statute of limitations had run and this was affirmed.  As the Court of Appeals noted:  " In Watters, the supreme court addressed the question of whether the filing of a complaint tolls the statute of limitations until the 120-day window for service of process has expired or until after the case has been adjudicated. Id. at 1244. The supreme court ultimately found that filing a complaint tolls the statute of limitations only for the 120-day service period provided in Rule 4(h), and the clock begins to run again at the end of the 120  days. Id. at 1244"

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