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November 2, 2021

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April 1, 2020

Tolling of Statutes of Limitations in Massachusetts During COVID-19 Pandemic – Effect, Ethical Pitfalls, and Best Practices

By Christine M. Kingston, Patrick T. Uiterwyk, Colin T. Barrett

[Updated April 3, 2020]

On April 1, 2020, the Massachusetts Supreme Judicial Court (“SJC”) issued an Order entitled Order Regarding Court Operations Under the Exigent Circumstances Created by the COVID-19 (Coronavirus) Pandemic (the “Order"). The Order is effective on April 6, 2020 and repeals and replaces a similar order issued by the SJC on March 17, 2020 (“March 17 Order”). Both the Order and the March 17 Order contain similar provisions governing access to Massachusetts courts, the operations of clerks’ offices, trials and deadlines set by statute, court rule, standing orders, or guideline. As pertinent here, the Order tolls “[a]ll statutes of limitation […] from March 17, 2020 through May 3, 2020.”

Although the Order is short and authoritative, the actual effect of the tolling of statutes of limitations is not as straightforward as it appears. Here, we consider (1) whether and how the SJC has authority to toll and extend statutes of limitations by Order in the first instance; (2) the effect of the tolling Order on Massachusetts courts and in other jurisdictions; (3) how other jurisdictions have handled the issue during the pandemic; and (4) potential ethical pitfalls and best practices moving forward.

SJC’s Authority to Universally Toll Statutes of Limitations

In the first instance, does the SJC have authority to universally toll all statutes of limitations despite that the limitations periods are fixed by statute, and where equitable tolling has traditionally been applied sparingly? The answer is far from clear, but even assuming that authority exists, important exceptions are outlined here.

The SJC issued the Order pursuant to its statutory superintendence authority over inferior Massachusetts Courts. G.L. c. 211, § 3 grants the Supreme Judicial Court “general superintendence of the administration of all courts of inferior jurisdiction” and authorizes the court to “issue such writs, summonses and other processes and such orders, directions and rules as may be necessary or desirable for the furtherance of justice, the regular execution of the laws, the improvement of the administration of such courts, and the securing of their proper and efficient administration.” G.L. c. 211, § 3. Much of the Order addressing access to the courts, jury empanelment, and pending trials clearly falls within the ambit of the SJC’s authority under G.L. c. 211, § 3.

However, the tolling of all statutes of limitations raises questions about scope of the SJC’s authority under § 3. The tolling may be reasonably viewed as an action taken under the SJC’s authority to “issue […] such orders, directions and rules as may be necessary or desirable for the furtherance of justice.” See G.L. c. 211, § 3. But § 3 expressly provides that the superintendence authority does not include authority to “supersede any general or special law.” Id. Thus, the universal expansion of all limitations periods may be arguably beyond the scope of the SJC’s powers under § 3 because statutes of limitations are fixed by statute. But see Sullivan v. Chief Justice for Admin and Management of Trial Court, 448 Mass. 15, 43 (2006) (“[W]e do not view the provisos added to the second paragraph of G.L. c. 211, § 3 as limitations on this court’s inherent power to superintend the court system […] Where the administrative of justice is in jeopardy, from whatever source […] there is no limitation on this court’s inherent judicial authority.”).

Regardless of the Court’s superintendence powers, there is also an argument that the SJC’s universal tolling Order is inconsistent with Massachusetts’ equitable tolling principles. As a practical matter, the Order extends all Massachusetts statutes of limitation for 47 days. This extension appears to apply regardless of whether the applicable limitations period would otherwise expire during the closure of the courts, and regardless of individual circumstances. In this regard, the Order serves to protect the interests and rights of parties whose rights to relief might be extinguished if a limitations period expires during the closure. But it is a noted departure from Massachusetts tolling rules. Massachusetts courts are to apply equitable tolling “sparingly.” See Halstrom v. Dube, 481 Mass. 480, 485 (2019). Courts have generally recognized limited circumstances under which equitable tolling may be applied. Looking to both federal and state law, the SJC in Halstrom recognized that equitable tolling is appropriate where: (1) a litigant failed to file within the limitations period due to excusable ignorance; (2) a plaintiff was affirmatively mislead by the defendant and prevented from taking action within the limitations period; or (3) where a litigant actively pursued his or her rights before the limitations period expired but failed to file an effective pleading. See id. at 485; but see McGrail Associates v. Universal Underwriters, Inc., 13 Mass.L.Rptr 670 at *3 (Mass. Sup. Ct. 2001) (refusing to toll the limitations period under G.L. c. 175, § 99, finding that defendant’s failure to provide a copy of the applicable insurance policy was not so inequitable so as to justify tolling the statute). Given that the Order tolls all statutes of limitations without regard to individual circumstance, it is clearly broader than traditional equitable tolling principles.

However, it is not necessarily inconsistent with how other courts have applied equitable tolling principles. For example, in a recent case, the U.S. Court of Appeals for the First Circuit employed a two-prong test to determine whether the District Court properly refused to equitably toll the one-year limitations period for habeas relief under 28 U.S.C. § 2254. See Blue v. Medeiros, 913 F.3d 1 (1st Cir. 2019). The Medeiros court relied on the U.S. Supreme Court’s test set forth in Holland v. Florida, 560 U.S. 631, 649 (2010) and inquired whether: (1) the petitioner diligently pursued her rights and, if so (2) whether “some extraordinary circumstance, or obstacle, prevented timely filing.” See id. at 8. In light of the pandemic, most diligent litigants in Massachusetts would arguably satisfy the test set forth in Medeiros and Holland.

Effect of SJC’s Tolling Order

Assuming the validity of the SJC’s universal tolling Order, how will it apply in Massachusetts state courts and in other jurisdictions? The answer is fairly clear in Massachusetts state courts, but much more complicated in other jurisdictions.

In Massachusetts state courts, Massachusetts law will obviously govern the accrual, length, and tolling of the statutes of limitations for Massachusetts claims. Conversely, federal courts will apply federal law concerning tolling when considering federal claims, with the possible exception of federal claims (such as 28 U.S.C. § 1983) that do not have a limitations period but borrow it from comparable state law. See Vistamar, Inc. v. Fagundo-Fagundo, 430 F.3d 66, 71-72 (1st Cir. 2005).

For federal courts sitting in diversity and adjudicating Massachusetts claims where there is no dispute that the claims arise under Massachusetts law, federal courts will apply Massachusetts’ substantive law concerning the accrual, length, and tolling of statutes of limitations. See Quality Cleaning Products R.C., Inc. v. SCA Tissue N. Am., LLC, 794 F.3d 200, 204-05 (1st Cir. 2015) (“[A] federal court sitting in diversity must apply the relevant state’s statute of limitations, including its accrual rules.”). This includes tolling rules. See id. (citing in parenthetical Walker v. Armco Steel Corp., 446 U.S. 740, 751 (1980), as “holding that whether filing of the complaint tolls the statute of limitations is governed by state law,” and Loguidice v. Metro. Life Ins. Co., 336 F.3d 1, 6 (1st Cir. 2003), as “applying Massachusetts’ discovery rule”). This is also true of federal courts hearing Massachusetts claims over which they have supplemental jurisdiction in a case otherwise premised only on federal question jurisdiction. See, e.g., Lawless v. Steward Health Care Sys., LLC, 894 F.3d 9, 21 (2018) (“Since the district court adjudicated the state-law claim under supplemental jurisdiction, federal law supplies the applicable procedural rules and state law supplies the substantive rules of decision.”).

But the question remains whether federal courts will consider the SJC’s Order a “tolling rule” sufficient in and of itself to toll the limitations periods for Massachusetts claims. In applying state substantive law, federal courts generally look to precedent from the state’s highest court in the form of binding case law. However, in the absence of binding case law, federal courts make “informed prophec[ies]” concerning how the state’s highest court would decide the issue based on, among other things, dicta and “other reliable data.” Lawless, 894 F.3d at 21. Thus, it is likely that a federal court would consider the SJC’s Order requiring tolling either to be sufficient in and of itself to bind the federal court for the purposes of Massachusetts’ substantive tolling rules, or sufficiently indicative of how the SJC would rule if the issue was before it in a case. Ultimately, the “State’s highest court is the best authority on its own law,” and the SJC here has spoken. See Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S. Ct. 1776, 18 L. Ed. 2d 886 (1967) (when “the underlying substantive rule involved is based on state law,” “the State’s highest court is the best authority on its own law”).

Notwithstanding the foregoing, the analysis gets more complicated if a choice-of-law dispute arises. For example, consider a contract case filed in federal court in Massachusetts on the basis of diversity jurisdiction, pleading common law contract claims. Imagine that a dispute arises between the parties concerning which state’s substantive law applies to the contract claims. Where there is such a dispute, federal courts sitting in diversity apply choice-of-law provisions for the state in which it sits. See Advance Financial Corp. v. Isla Rica Sales, Inc., 747 F.2d 21, 28 (1st Cir. 1984). Thus, a federal court sitting in Massachusetts would apply Massachusetts’ choice-of-law provisions. But that does not necessarily mean that the court will ultimately apply Massachusetts contract law for the claims at issue (including its limitations periods and tolling rules); the result is dictated by the choice-of-law provisions.

Matters become even more complicated in other state jurisdictions. Some states consider statutes of limitations to be purely procedural rules to be automatically applied to claims pleaded in their courts, while others (like Massachusetts) examine choice-of-law principles to determine which jurisdiction’s statutes of limitations will apply. This analysis can become even more complicated where there is a subject contract with a choice-of-law provision. Some states hold that such provisions apply to statutes of limitations, while others hold that the contract must specifically identify statutes of limitations in the contract’s choice-of-law provision or else the provision does not apply thereto. See Petrucci v. Esdaile, 2017 Mass. Super. LEXIS 65, at *4-6 (Mass. Super. Ct. BLS May 31, 2017). Thus, in other jurisdictions, whether Massachusetts’ tolling rules will apply must be analyzed with an eye towards the jurisdiction’s choice-of-law provisions and, where applicable, the subject contract.

Of course, merely because Massachusetts’ statutes of limitations and tolling rules do not apply to a particular claim does not mean a tolling argument cannot be made based on the current pandemic. It simply means that a litigant will not have the arguable benefit of the SIC’s Order that automatically and universally tolls limitations periods, but instead will have to rely on the tolling rules of the applicable jurisdiction and based on the litigant’s personal circumstances.

Tolling of Statutes of Limitations in Other Jurisdictions

As a result of the pandemic, nearly every highest state court issued emergency administrative orders to address the unique and challenging circumstances posed by the health crisis.

A majority of these state court orders — Alaska, Arizona, Arkansas, California, Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Kentucky, Maryland, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Oregon, South Carolina, South Dakota, Virginia, Washington, Wisconsin, and Wyoming — are simply silent as to whether or not statutes of limitations are tolled or extended during the crisis.

A few courts, including Hawaii, Michigan, and Pennsylvania, issued orders that imply that statutes of limitations may be tolled, but these orders do not expressly do so.

A fair number of states — Alabama, Maine, Missouri, North Dakota, Rhode Island (need to petition court for tolling), Utah, and Vermont—issued orders which expressly state that the administrative orders do not toll applicable statutes of limitations.

For those orders which do expressly toll the statutes of limitations, states have taken a number of approaches. In addition to Massachusetts, the Supreme Courts of Delaware, Iowa, New Jersey, Oklahoma, Tennessee, Texas, and West Virginia issued orders tolling statutes of limitations. In Connecticut, Louisiana, and New York, the governors of those states issued executive orders tolling the statute of limitations. And in Kansas and Ohio, the statute of limitations were extended by the legislature.

For additional information, please click on the link provided below to view our State Chart, which provides a state-by-state breakdown on how each state is handling the tolling of statutes of limitations during the pandemic.

Ethical Pitfalls and Best Practices

Although tempting to do so, practitioners should not assume that the SJC’s universal tolling Order and similar orders issued in other jurisdictions mean that the issue of tolling is clear cut and definitive. As highlighted above, and even assuming the SJC’s authority to toll all Massachusetts statutes of limitations, the Order will likely be inapplicable in many other jurisdictions even where the underlying events occurred in Massachusetts.

Litigants and practitioners should keep in mind that, ultimately, the plaintiff has the burden of proving that he or she is entitled to equitable tolling of a statute of limitations that has clearly expired. See Pagliarini v. Iannaco, 440 Mass. 1032, 1032 (2003) (plaintiff has the burden of proving that a defendant should be estopped from asserting a statute of limitations defense).

Moreover, litigants and practitioners should consider that, even accounting for the most generous reading of the SJC’s tolling Order, there are important exceptions. For example, the SJC’s tolling of statutes of limitations has no apparent effect on statutes of repose. Indeed, Massachusetts cases have consistently held that statutes of repose are not subject to any form of tolling, except where expressly provided by statute. See Joslyn v. Chang, 445 Mass. 344, 350 (2005) (“Enforcement of the statute of repose as a rigid prohibition of action is consistent with our cases, which are clear that statutes of repose are not subject to any form of equitable tolling, except as specifically provided by the statute.” (internal citation omitted)). See also Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 631 n.19 (1997). And the SJC’s Order made no express reference to statutes of repose (although it does reference “all deadlines set forth in statutes”).

Practitioners should also be mindful that, in some cases, applicable time limits are considered jurisdictional and therefore not subject to any tolling, waiver, or estoppel beyond what the applicable statute provides. See, e.g., Flynn v. Contributory Ret. Appeal Bd., 17 Mass. App. Ct. 668, 669 (1984) (“[T]imely filing under G.L. c. 30A, § 14, is a jurisdictional requirement.”) (no extension unless allowable by terms under statute). See also Jobe v. INS, 238 F.3d 96, 99-100 (1st Cir. 2001) (noting open question as to whether immigration statute was mandatory and jurisdictional, but declining to decide the issue because petitioner did not show entitlement to equitable tolling in any event). Thus, for any statute, rule, or other provision that contains a timing provision that is jurisdictional in nature, practitioners should assume that the SJC’s Order does not and cannot have any effect on the same.

Finally, even under the most generous reading, the SJC’s tolling Order likely cannot operate to revive a limitations period that expired before the Order was issued. Indeed, even the Legislature could not revive a limitations period that expired by statute. See, e.g., Commonwealth v. Rocheleau, 404 Mass. 129, 130 (1989) (time-barred criminal prosecutions cannot be revived by subsequent amendment to statute). See also Stogner v. California, 539 U.S. 607, 632-33, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003) (“[A] law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution.”). (Note that the Ex Post Facto Clause bars only legislative action, although the courts would likely be similarly restricted by the Due Process Clause. See, e.g., Santiago v. Commonwealth, 428 Mass. 39, 43 (1998).)

Given the substantial amount of uncertainty in the scope and applicability of the SJC’s Order, practitioners should endeavor to work with opposing counsel and parties where applicable to reach mutual agreement on pending or prospective deadlines. Best practices include memorializing any agreements in writing and, where possible, filing such agreements directly with the applicable court. But to the extent any applicable deadlines are jurisdictional, no agreement could operate such to extend those deadlines and confer jurisdiction on courts where it otherwise would not exist.

Those who are eyeing the imminent expiration of statutes of limitations should keep in mind that those deadlines may be considered automatically tolled and extended under the SJC Order. However, any practitioner who has a good faith statute of limitations affirmative defense should still take steps to preserve it in litigation, by pleading it in an answer or otherwise.

Reach out directly to Christine Kingston, Patrick Uiterwyk, or Colin Barrett with any questions concerning the SJC’s Order or its potential effects on litigation in Massachusetts and elsewhere.

Follow the link to access a listing of Court Orders Re: Statute Of Limitations - COVID-19 by Patrick T. Uiterwyk.

For additional information on COVID-19 related issues, please visit the Nelson Mullins COVID-19 resource page or contact a Nelson Mullins attorney.