« Another Federal Death Case in a Non-Death State | Main | A Crack in the Whren Wall? »

Monday, January 22, 2018

One easy fix in Artis

A 5-4 Court held in Artis v. District of Columbia that the filing of a state-law claim on supplemental jurisdiction tolls the limitations period; where the court declines to exercise supplemental jurisdiction over the state claim under § 1367(c), the plaintiff has whatever time remained on the limitations period at the time of filing plus 30 days under § 1367(d). Justice Ginburg wrote for the Chief and Breyer, Sotomayor, and Kagan; Gorsuch wrote the dissent.

Gorsuch's dissent emphasized a concern that arose during arguments--that state courts may now have to deal with claims that were untimely by many years. This assumes that a claim might have been filed with, say, two years remaining on the limitations clock, would sit in federal court for several years, then would be filed in state court many years after it otherwise could have been. That was the case in miniature here--Artis was fired in November 2010 (facing a three-year limitations period on the state claims that gave her until November 2013), filed suit in December 2011, had her federal claims resolved on summary judgment in June 2014, and had the court decline supplemental jurisdiction over her state claim at that time. As the Court resolved the case, Artis could have filed in July 2016, more than 2 1/2 years after she would have had to file had she not gone to federal court.

Such timing should not be a significant concern in the mine run of cases. A district court should be able to decide early in the litigation whether declination is warranted. It should be obvious near the outset of the case whether the state-law issues substantially predominate or raise novel or complex issues of state law--if not from the complaint then from the responsive pleadings that raise additional state-law claims.

The problematic case is this one under § 1367(c)(3)--where the district court "has dismissed all claims over which it has original jurisdiction," meaning the federal claims. But this problem arises only because of how courts have interpreted "dismissed" in (c)(3). The word seems to contemplate a 12(b)(6) dismissal,* a decision typically made in the early weeks or months of an action.

[*] It cannot include a 12(b)(1) dismissal. If the court lacks subject-matter jurisdiction over the federal claims, it never could have had supplemental jurisdiction over the state claims. The court would be dismissing the state claims for lack of jurisdiction, not declining supplemental jurisdiction. Refiling would depend on the state's savings statute.

But courts have interpreted dismissed to include resolved on summary judgment, including in Aris. That adds the additional months and years that concerned Justice Gorsuch, as summary judgment often must await discovery and the lengthy exchange of information. As Brad Shannon (Florida Coastal) argued a decade ago, however, summary judgment is not a dismissal. If courts limited (c)(3) to dismissals, such time lags would be less likely to occur. A district court could not decline supplemental jurisdiction following a grant of summary judgment, so a case such as Artis (declination 2 1/2 years after the suit was filed) will not result in a declination or the need to refile in state court after the period has run. Declination, and thus tolling, would arise only where the court dismissed federal claims, which typically happens early in the process and much closer to the limitations clock.

Posted by Howard Wasserman on January 22, 2018 at 01:21 PM in Civil Procedure, Howard Wasserman | Permalink

Comments

Assuming that summary judgment is not a dismissal (which seems dubious at best--that Shannon article is not very persuasive), in the many cases where state law claims hang around until the federal claims are disposed of on summary judgment, why could a federal court not decline supplemental jurisdiction under 1367(c)(2)? Once there are *no* claims over which the court has original jurisdiction, the state claims would "substantially predominate."

Pragmatically, it seems both unlikely and undesirable for federal courts to find themselves forced to either prematurely decline supplemental jurisdiction or adjudicate state claims that belong in state court after the federal claims have been terminated. There should be, and probably always will be, a mechanism for dumping supplemental state claims after summary judgment.

Posted by: emh | Jan 24, 2018 1:44:08 PM

You may be right about the policy concerns. I don't think it works textually because that reading of (c)(2) would render (c)(3) superfluous. If state claims predominate whenever no federal claims remain, then (c)(2) would cover all reasons for the federal claims going away, whether by dismissal, summary judgment, or something else.

Posted by: Howard Wasserman | Jan 24, 2018 4:38:02 PM

Post a comment