Kevin L. Henderson Prevails on Motion to Dismiss Based on the Statute of Limitations

Facts:  In the early morning hours of November 22, 2017, Plaintiff was asleep in the sleeper berth of his Freightliner tractor at the Flying J Travel Center in McKinley County, New Mexico. As he slept, Defendant, CRST Expedited, Inc.’s driver attempted to back her tractor-trailer into the parking spot next to Plaintiff’s vehicle. In the process, her trailer made contact with Plaintiff’s tractor resulting in the driver’s door being torn off. Plaintiff did not complain of any injuries at the scene.

Following the incident, Plaintiff sought treatment and was diagnosed with post-concussion syndrome, mild neurocognitive disorder due to traumatic brain injury, and adjustment disorder mixed with anxiety and depressed mood as well as injuries to his cervical spine. Ultimately, Plaintiff underwent a cervical discectomy and artificial disc replacement of C4-C5. Plaintiff alleged past medical expenses in excess of $280,000.00 and future medical expenses of approximately $1,000,000.00.

On December 16, 2020, Plaintiff filed a Complaint for personal injuries in the United States District Court – Central District of California – Eastern Division. The Complaint alleged causes of action for negligence, negligence per se (based on violation of various provisions of the Federal Motor Carrier Safety Act), motor vehicle negligence and negligent hiring, training and supervision. Furthermore, that the Complaint was timely based on California Emergency Rule 9 (enacted as a result of the COVID-19 pandemic) which tolled all civil statute of limitations that exceeded 180 days from April 6, 2020 to October 1, 2020.

Strategy:  Kevin Henderson recognized that Plaintiff’s Complaint was barred by the statutes of limitations for both New Mexico and California which made it vulnerable to a Rule 12(b)(6) Motion to Dismiss. Specifically, New Mexico’s three (3) year statute of limitations ran on November 22, 2017 as New Mexico did not toll any statutes of limitations as a result of COVID-19 and California’s two (2) year statute of limitations ran on November 22, 2019. Furthermore, that despite Plaintiff’s claim that Emergency Rule 9 had tolled the statute of limitations, the rule was not applicable to the instant action because the statute of limitations in California had run prior to the COVID-19 pandemic and Emergency Rule 9 could not be “borrowed” to extend the statute of limitations in New Mexico. Lastly, that the Federal Motor Carrier Safety Act (FMCSA) did not provide for a private cause of action for personal injuries which would provide Plaintiff a four (4) year statute of limitations. Consequently, we would argue that the entire action was barred and that any amendment to the Complaint would be futile. If successful, this Motion would extricate CRST Expedited, Inc., it leasing company and driver from the action at the pleadings stage, saving them significant costs associated with drawn-out litigation.

Outcome:  The Court granted Defendants’ Motion to Dismiss, finding that California’s borrowing statute (CCP § 361) was not applicable as it was intended to prevent residents of other states with claims that were barred in the other state from using California courts to prosecute the action, i.e., to prevent forum shopping. The Court, consistent with our briefing, concluded that the borrowing statute could not be used to resurrect New Mexico’s lapsed 3-year statute of limitations, stating that “the borrowing statute can be a sword or a shield, but it cannot resurrect the dead.”

The Court, also consistent with our argument, found that the FMCSA does not create an independent cause of action for personal injuries. Thus, the 4-year statute of limitations applicable to the FMCSA did not apply to this case.

Thus, the Complaint was dismissed outright at the pleadings stage.