United States District Court, M.D. Pennsylvania
June 10, 2005.
ANDERS ELLIS BJORGUNG, Plaintiff
WHITETAIL RESORT, WHITETAIL SKI COMPANY, INC., U.S. SKI & SNOWBOARD ASSOCIATION, and WHITETAIL MOUNTAIN OPERATING CORP., Defendants.
The opinion of the court was delivered by: YVETTE KANE, District Judge
MEMORANDUM AND ORDER
Pending before the Court is Defendants' Motion for Judgment on
the Pleadings, in which they argue that the instant case is
barred by the applicable statute of limitations set forth in
42 Pa. C.S.A. § 5524. (Doc. No. 11.) The Court agrees and will enter
judgment in favor of Defendants.
This diversity action arises from a skiing accident involving
Plaintiff that occurred on February 10, 2001 during a competitive
giant slalom ski race at the Whitetail Ski Area in Mercersburg,
Pennsylvania. Plaintiff alleges that the Defendants' negligence
caused the accident that led to Plaintiff sustaining personal
Plaintiff initially brought an action against the Defendants in
November 2003. More than one year later, this Court dismissed the
case without prejudice after Plaintiff's counsel failed to follow
numerous Orders from the Court, and failed to prosecute the
litigation in any meaningful way. (Civil Action No. 1:03-CV-2114,
Doc. No. 48.) Plaintiff, through the same counsel, filed a new
complaint on February 3, 2005 alleging essentially the same facts
and claims asserted in the first action. II. Discussion
Defendant has moved for judgment on the pleadings pursuant to
Rule 12(c) of the Federal Rules of Civil Procedure, arguing that
Plaintiff's complaint is barred by the applicable statute of
limitations. (Doc. No. 11.)
Under Pennsylvania law, actions for personal injury must be
commenced within two years of the injury. 42 Pa. C.S.A. § 5524.
If a plaintiff is a minor at the time of injury, the two-year
statute of limitations does not begin to run until the plaintiff
reaches the age of eighteen. 42 Pa. C.S.A. § 5533(b). Plaintiff
was born on November 25, 1983 and was seventeen on February 10,
2001, the date on which he allegedly incurred the injury that is
the basis of this litigation. Plaintiff turned eighteen on
November 25, 2001. Accordingly, Plaintiff was required to
commence this litigation not later than November 25, 2003. The
instant litigation was commenced on February 3, 2005, more than
one year after the statute of limitations had run on the claim,
and is therefore time-barred.
The fact that the prior litigation was dismissed without
prejudice to Plaintiff's right to refile has no bearing on the
Court's finding. It is well settled that a "statute of
limitations is not tolled by the filing of a complaint
subsequently dismissed without prejudice" because "the original
complaint is treated as if it never existed." Cardio-Medical
Assocs. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 77 (3d Cir.
1983). Accordingly, "the dismissal of a complaint without
prejudice after the statute of limitations has run forecloses the
plaintiff's ability to remedy the deficiency underlying the
dismissal and refile the complaint." Brennan v. Kulnick,
___ F.3d ___, 2005 WL 1124059 (3d Cir. 2005) (citing Ahmed v.
Dragovich, 297 F.3d 201, 207 (3d Cir. 2002)). The Third Circuit
recently carved out a narrow exception to this rule: "we hold
that when a complaint is filed within the statute of limitations
but is subsequently dismissed without prejudice in an order containing
conditions for reinstatement within a specified time period, the
statute of limitations is tolled provided that the plaintiff
meets those limitations." Brennan, ___ F.3d ___, 2005 WL 1124059
(emphasis added). With respect to the case at bar, the Order
dismissing the prior litigation did not contain any conditions
for reinstatement, nor did it set forth a specified time period
for refiling. Accordingly, the exception enunciated in Brennan
is inapplicable to this case.
Plaintiff argues that "the Court is compelled to allow this
instant action" as a "successor to the original Complaint[.]"
(Doc. No. 16, at 9.) In support of this assertion, Plaintiff
claims that the "dismissal entered December 1, 2004 . . .
included the specific provision `without prejudice' indicating
that a later-filed petition would count as an amendment under
Rule 15(c) that would relate back to the initial petition for
statute of limitations purposes." Id. Plaintiff also seems to
argue that the statute of limitations is irrelevant because
Defendants have not been prejudiced. The Court disagrees with
both of these assertions.
As an initial matter, in its Order dismissing the former
action, the Court made no express or implied reference to Rule
15(c) of the Federal Rules of Civil Procedure, which provides for
the relation back of amendments to pleadings under certain
circumstances. Fed.R.Civ.P. 15(c). Moreover, Plaintiff appears
to misunderstand the nature and scope of this Court's dismissal
of the prior litigation. The Court dismissed the prior complaint
without prejudice, but nowhere provided that any applicable
statutes of limitation were to be tolled. Indeed, in dismissing
without prejudice, the Court did not contemplate whether or not a
successive civil action would be time-barred. Accordingly, the
Court is not "compelled to allow the instant action." Furthermore, lack of prejudice to a defendant is not a
determinative factor in whether the statute of limitations should
be tolled. Seitzinger v. Reading Hosp. & Med. Ctr.,
165 F.3d 236, 241-42 (3d Cir. 1999). Rather, lack of prejudice becomes a
relevant consideration only after a court has identified a
recognized factor that might justify equitable tolling. Id. at
242. As discussed below, Plaintiff has not identified, and the
Court has not found, any factor that could justify equitable
tolling in this case. Accordingly, the alleged lack of prejudice
to Defendants is irrelevant to a consideration of whether the
statute of limitations should be tolled.
The Court notes that in certain narrow circumstances, the
statute of limitations may be equitably tolled, allowing a
plaintiff to bring suit after the limitations period has expired
if the plaintiff has "been prevented from filing in a timely
manner due to sufficiently inequitable circumstances."
Seitzinger, 165 F.3d at 239-240. In the instant case, Plaintiff
has not alleged that the statute of limitations should be
equitably tolled, and has pointed to no "sufficiently inequitable
circumstances" that would warrant such relief. Id.
Nevertheless, the Court finds it appropriate to address the issue
briefly, particularly in light of the fact that Seitzinger also
concerned a case of attorney neglect.
In Seitzinger, the Third Circuit noted that equitable tolling
may be appropriate in certain narrow circumstances including,
inter alia: where a defendant has actively misled the
plaintiff; where the plaintiff has "in some extraordinary way"
been prevented from asserting his rights; or where the plaintiff
has timely asserted his rights in the wrong forum.
165 F.3d at 240. Additionally, attorney negligence that goes beyond "garden
variety neglect" may in some cases be sufficient to equitably
toll the statute of limitations. Id. at 241 (citing Irwin v.
Dept. of Veterans Affairs, 498 U.S. 89, 96 (1990)). In
Seitzinger, the Court noted that an attorney's failure to file
a complaint in a timely manner "probably constitutes garden variety neglect." Id. However, the Court
found that an attorney's "affirmative misrepresentations to his
client" regarding the filing at issue "rise above that standard"
and bear upon the issue of equitable tolling. Id. Underscoring
the Court's finding that the plaintiff had adduced facts to
overcome summary judgment on the equitable tolling issue was the
fact that the plaintiff had been particularly diligent in
pursuing her claim. Id. On this showing of counsel's deceit and
the plaintiff's assiduousness, the Third Circuit remanded the
case to the district court to consider whether the statute of
limitations should be equitably tolled.
Turning to the case at bar, the Court dismissed Plaintiff's
original complaint without prejudice due to the repeated failure
of Plaintiff's counsel to comply with the most basic of this
Court's Orders and procedural requirements. This was not a case
of counsel missing a filing deadline by one day and misleading
his client, as was the issue in Seitzinger. Rather, Plaintiff's
counsel failed to prosecute the litigation in any meaningful way
for approximately one year and consistently disregarded this
Court's orders, even after the Court warned counsel that the case
was subject to dismissal for any continued negligence.
Notwithstanding this admonishment, Plaintiff's counsel failed to
file a case management plan in a timely manner (even after
previous extensions and unexcused failures), failed to notice an
appearance by the date specified by the Court orally and in a
formal Order, and failed to affiliate timely with local counsel.
The Court is unaware of whether Plaintiff's counsel actively
misled his client during this time, and Plaintiff's counsel has
not advised the Court of any such dissembling. Furthermore,
Plaintiff has not suggested that he was particularly diligent in
seeking to prosecute the litigation. Therefore, the Court has no
basis for finding that the applicable statute of limitations
should have been equitably tolled in this case. For all of the foregoing reasons, the Court finds that
Plaintiff's complaint is time-barred, and judgment must therefore
be entered in favor of Defendants. III. Order
And now, this 10th day of June 2005, for the reasons set
forth in the within memorandum, the Court finds that the
above-captioned litigation is barred by the applicable statute of
limitations, 42 Pa. C.S.A. § 5524. Accordingly, IT IS HEREBY
ORDERED THAT Defendants' Motion for Judgment on the Pleadings
(Doc. No. 11) is GRANTED. The Clerk of Court is directed to
enter judgment in favor of Defendants and to close the file.
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