Tolling (law)

The term tolling is unknown to English law. Part II of the Limitation Act 1980 may permit an extension or delay to commencement of a limitation period where a party operates under a defined disability, in personal injury cases, amongst others. Also, where relevant facts of a cause of action for fraud or mistake have been hidden from a claimant, the limitation period will commence on the date that the person could have with reasonable diligence discovered it.

Tolling is widely available in the United States,[6] expect in small number of circumstances where the legislature has expressly indicated to the contrary.[7][5] And even when a statute of limitations is waived, entitlement to any further relief must be demonstrated by clear and convincing evidence.[16] If this cannot be demonstrated then tolling naturally becomes futile and a waste of judicial resources.[3][4] But if all requirements for obtaining injunctive relief are satisfied then a statute of limitations cannot be invoked by the opposing party or a court as an obstacle to such relief.[16][3][4][10][17]

Historically, the federal judiciary of the United States had "allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass."[18] The federal approach has been described as merging principles of equitable tolling and equitable estoppel.[19] Under standard application of those principles, equitable tolling does not require any misconduct by the defendant or respondent, while equitable estoppel requires wrongful conduct on the part of the defendant, such as fraud or misrepresentation.[20]

Before 2015, when the United States was a defendant, equitable tolling could not be applied against the United States since the Spending Clause has been interpreted by the Supreme Court to only vest Congress with the authority to waive sovereign immunity, and statutes of limitation are interpreted as a condition on the waiver of sovereign immunity that limit the jurisdiction of a court to hear cases against the United States. In April 2015, the Supreme Court held that equitable tolling applies against the United States, despite the Spending Clause.[13]

Some non-federal courts in the United States take different approaches to equitable tolling, with some courts accepting equitable tolling and others sharply limiting the practice or declining to toll the statute of limitations in the absence of statutory authority.

Arizona courts have recognized and applied the equitable tolling doctrine.[21] For example, the state's courts have allowed equitable tolling:

• When a second wrongful death claim was not filed in a timely manner after a successful verdict on first claim that was overturned on appeal due to defective service of process.[22]
• Where a plaintiff prisoner failed to timely file notice of claim against state because he first pursued claim through prison's administrative grievance procedure.[23]
• When a right-to-sue letter from the Arizona Attorney General's office contained incorrect date by which plaintiff was required to sue on his claim.[24]

The Supreme Court of California has held that equitable tolling may occur in carefully considered situations, as necessary to prevent the unjust technical forfeiture of causes of action, where the defendant would suffer no prejudice.[25]

In the context of a case in which the defendants were subject to service by substituted service, Delaware's Supreme Court held that it would not equitably toll the statute of limitations due to the plaintiff's difficulty effecting personal service of a lawsuit upon the defendants.[26]

The Florida Supreme court observed, as an equitable remedy, the prejudice to the defendant must be considered before application of equitable tolling.[27] The court expressed that tolling doctrine is used in the interests of justice to accommodate both a defendant's right not to be called upon to defend a stale claim and a plaintiff's right to assert a meritorious claim when equitable circumstances have prevented a timely filing. The application of equitable tolling focuses on the plaintiff's excusable ignorance of the limitations period and on the lack of prejudice to the defendant.[28] Equitable tolling does not require active deception or employer misconduct, but focuses rather on whether the plaintiff acted with a reasonably prudent regard for his rights.[27]

Maryland does not permit the equitable tolling the statute of limitations, and tolls the limitations period only when the legislature has created an exception to its application.[29] Maryland's courts have held that the statute of limitations reflects a legislative judgment of what is deemed an adequate period of time in which a person of ordinary diligence” should bring his or her legal action.[30]

In Michigan, the plaintiff must exercise due diligence in order to invoke equitable tolling. Where information is reasonably available to the plaintiff such that the proper defendant may be identified and served, the plaintiff may not seek the tolling of the statute of limitations due to its failure to obtain the needed information in a timely manner.[31]

Mississippi courts require earnest efforts by plaintiffs seeking tolling, and will not equitably toll the statute of limitations based upon claims of excusable neglect, or based upon the plaintiff's own actions or omissions.[32]

The Supreme Court of New Mexico has held that equitable tolling normally applies in cases where a litigant was prevented from filing suit because of an extraordinary event beyond his or her control.[33] In contrast, where a plaintiff fails to identify a cause of action and file a lawsuit in a timely manner due to his or her own fault, equitable tolling does not apply.[34]

In North Dakota, a plaintiff's failure to timely serve the defendants does not warrant equitable tolling.[35]