But the Supreme Court did not address whether a class action filed in one federal or state jurisdiction tolls the statute for cases filed in another jurisdiction. Authors Barbara R. Binis and Caroline A. Flotron point out that most courts who have addressed the matter have determined that there is no cross-jurisdictional tolling. However, a recent ruling by the California Court of Appeal held that filing of federal class actions tolled limitations in a state court suit. The case is currently pending before the California Supreme Court.

Allowing cross-jurisdictional tolling would promote forum shopping and flood courts that permitted it, Binis and Flotron argue. Sound public policy arguments support prohibition of such tolling rules.

In American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), the U.S. Supreme Court held that the filing of a class action tolls the statute of limitations for subsequently filed lawsuits pending a decision on the merits of class certification provided: (1) the plaintiff who filed an individual suit could have been a member of the class had a class been certified and (2) the claims are the same as those in the complaint of the class action suit. American Pipe applied this "equitable tolling principle" to lawsuits filed in federal court by individuals who had filed motions to intervene in the original federal court action.

The Supreme Court later expanded this principle, holding that the filing of a class action in federal court tolls the statute of limitations not just for those who have intervened in the original suit, but also for those who subsequently file their own individual suit in the same federal court (Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 353-54 (1983)).

Accordingly, American Pipe addressed the effect of a class action on the statute of limitations of a lawsuit filed within the same court system as the original class action. However, subsequent federal court decisions, as well as case law in states where American Pipe has been adopted, have addressed the issue of whether the American Pipe rule permits a class action filed in federal court or another state jurisdiction to toll the statute of limitations for lawsuits filed in a different federal court or in a state judicial system.

The majority of the courts deciding the issue have held that where both actions are not brought in the same court system, tolling the statute of limitations for actions brought in one jurisdiction based on the filing of a class action in another jurisdiction is not sound public policy.

Pedicle Screw Cases

For example, in Wade v. Danek Med. Inc., 182 F.3d 281 (4th Cir. 1999), the plaintiff filed an action in the U.S. District Court for the Eastern District of Virginia against a pedicle screw manufacturer alleging negligence and strict liability claims in October 1995. The spinal fixation screw was implanted in the plaintiff in 1992. Plaintiff experienced immediate problems after the surgery and subsequently had the screw removed in 1995.

Several prior class actions, in which the plaintiff was a putative class member, were filed against the manufacturer in the Eastern Districts of Pennsylvania and Louisiana in 1993 and 1994. Class certification in those actions was denied in 1995.

Defendants in Wade moved for summary judgment on the ground that the Virginia two-year state statute of limitations had run prior to filing suit. The district court, applying Virginia law, granted summary judgment, holding that the statute of limitations was not tolled under Virginia state law by the pendency of a federal class action in another jurisdiction.

In so affirming, the Fourth Circuit noted that several courts have adopted a rule tolling the applicable statute of limitations during the pendency of a class action in their own state courts. However, the court distinguished that situation from the one before it, in which the plaintiff sought equitable tolling based on the pendency of class actions in federal courts sitting in other states.

The Wade court concluded that Virginia would not adopt a "cross-jurisdictional equitable tolling rule." It reasoned that allowing such a rule would result in a flood of filings once a class action in another forum was dismissed.

Further, the court stated that although the absence of a tolling rule may result in plaintiffs engaging in "protective filings" before the expiration of the statute of limitations, such an increase in filings would be far less than the increase that would result from allowing cross-jurisdictional tolling, because those states allowing the tolling rule would be inundated with a litany of cases upon rejection of a putative class.

Arguments Against Cross-Jurisdictional Tolling

There are several arguments which weigh against adopting the rule of cross-jurisdictional tolling. First, as the Fourth Circuit in Wade stated, there is the concern that permitting cross-jurisdictional tolling promotes forum shopping, and that any state which allowed cross-jurisdictional tolling would receive a disproportionate share of suits filed when courts refused to certify a class action after the statute of limitations has run. In effect, the state court that permitted cross-jurisdictional tolling would be flooded with claims because plaintiffs from across the country would elect to file suit in that state solely to take advantage of the state's tolling rule.

In addition, although allowing cross-jurisdictional tolling may protect plaintiffs who wish to preserve their right in state court while seeking class certification elsewhere, the Wade court held that such protection is far outweighed by the certain flood of claims from rejected putative classes. Accordingly, it found that it is sounder public policy not to expose state courts to such risks.

The Illinois Supreme Court came to a similar conclusion in Portwood v. Ford Motor Co. 701 N.E. 2d 1102, 1104 (Ill. 1998). In declining to adopt the cross-jurisdictional tolling rule, the Illinois high court reasoned that allowing cross-jurisdictional tolling would "increase the burden on that state's court system, because plaintiffs from around the country may elect to file a subsequent suit in that state solely to take advantage of the generous tolling rule."

The Portwood court further noted that because state courts have no control over the federal judiciary, state courts "should not be required to entertain stale claims simply because the controlling statute of limitations expired while a federal court considered whether to certify a class action."

Potential for Abuse

Courts have also found that allowing cross-jurisdictional tolling would create a potential for abuse. Any putative class plaintiff in any class action around the country, the courts say, could potentially benefit from tolling the statute of limitations simply by demonstrating that a class action was pending elsewhere in the country during the time the statute of limitations was running, regardless of whether the plaintiff was aware of the existence of the class action during its pendency. These courts concur that one state should not be forced to indefinitely extend the length of its limitations period pending a federal court's disposition of a class certification pending in another jurisdiction. See e.g., Ohio Hosp. Ass'n v. Armstrong World Indus., 2000 Ohio App. LEXIS 1538 (4/6/00).

Further, tolling state statutes of limitations pending class certification in federal court would unfairly prejudice defendants because a federal class action does not provide adequate notice to defendants of substantive claims being brought by any number of potential plaintiffs. If cross-jurisdiction tolling is permitted, the length of the limitations period would be dependent on the efficiency of the court considering whether to certify the class action.

Additionally, by declining to accept the rule of cross-jurisdictional tolling, the limitations period prescribed by the legislature is protected and defendants will not be forced to litigate stale claims. In short, a state court should not be required to entertain state claims simply because the controlling statute of limitations expired while a federal court considered whether to certify a class action.

Proponents' Arguments

Proponents in favor of cross-jurisdictional tolling argue that allowing the tolling rule promotes the efficiency of both state and federal courts. Proponents also argue that allowing tolling pending a class certification is consistent with the policy behind the statute of limitations because: (1) if plaintiffs deferred filing suit in reliance on a pending federal action they can not be said to have slept on their rights; and (2) the filing of the class action would have undoubtedly put defendants on notice of any potential claims. See Lee v. Grand Rapids Board of Education, 384 N.W. 2d 165 (1986) (holding that Michigan state claims were preserved by prior federal court suit).

Recently, in Smith v. Bayer Corp., 2001 Cal. App. LEXIS 3878 (12/28/01), 3 CLASS 15, 1/11/02, the California Court of Appeal held that the filing of two federal class actions tolled the statute of limitations on the plaintiffs' claims filed in state court. In reversing the trial court's granting of summary judgment to defendants on the basis that plaintiffs' claims were barred by the statute of limitations, the Court of Appeals stated that the plaintiffs' claims must be considered as timely filed if the jury finds they were timely filed as of the date when the first federal class action was filed.

The court based its opinion on its earlier decision in San Francisco Unified School Dist. V. W.R. Grace & Co., 37 Cal. App. 4th 1318 (1995). Notably, the court only extended cross-jurisdictional tolling to state cases where a federal class action was previously filed. The court did not extend cross-jurisdictional tolling to state cases in which class actions were filed in other states. This case is on appeal to the California Supreme Court, so a final decision of this issue remains uncertain.

In conclusion, although some courts have adopted cross-jurisdictional tolling, the majority of the courts that have addressed the issue have declined to allow cross-jurisdictional tolling. Because sound policy arguments weigh against adopting a cross-jurisdictional tolling rule, it is likely that courts considering this issue will follow suit and decline to adopt such a tolling rule.