Sales

Scope of Article 2

Article 2 of the Uniform Commercial Code (“U.C.C.”) applies to “transactions in goods” and defines “goods” to include all things that are “movable at the time of identification to the contract.” Courts tend to read section 2-102 more narrowly than its text by applying Article 2 to present sales of goods and to contracts for the future sale of goods.

In mixed-sales transactions, such as those involving goods and services, courts often apply a predominant purpose test. Under this test, Article 2 applies if the transaction is predominantly for the sale of goods, but it does not apply if the transaction is predominantly for the provision of services. The application of this test is illustrated by two interesting cases decided since the publication of the last survey.

In Lorad, L.L.C. v. Azteca Milling L.P., the court considered, among other things, whether the U.C.C. applied to a contract between Diversified Fall Protection (“DFP”) and Azteca Milling L.P. (“Azteca”), whereby DFP agreed to design, sell, and install custom-made fall protection systems in Azteca’s corn silos. A dispute developed when some of the fall protection systems separated from silo walls and Azteca decided to move to another provider. DFP brought suit for breach of contract on unpaid invoices and Azteca counterclaimed for breach of warranty. Granting summary judgment to DFP on Azteca’s counterclaims and to Azteca on DFP’s complaint, the court found Article 2 applied. The court first noted that the predominant purpose test is a factual question that applies to “‘hybrid’ contracts,” with the burden of proof on the party asserting application of Article 2. Ultimately, the court agreed with DFP that Article 2 applied where the systems were shipped before installation and, once the equipment failed, were uninstalled and returned to DFP. The court noted that: (i) Azteca initially pled that the transaction was subject to Article 2; (ii) Azteca required OSHA compliant “safety equipment at the silos—not just safety training”; (iii) the proposals and purchase orders DFP proposals “use[d] terms like ‘warranty’ and ‘FOB’ which are synonymous with a transaction in ‘goods’ under the U.C.C.”; and (iv) the parties’ proposals and purchase orders indicated that Article 2 applied. Moreover, the court held that application of the predominant purpose test is a question of law where there is no dispute as to the facts of the goods and services included in the transaction.

In Challenge MFG Co. v. Metokote Corp., the court considered a breach of contract claim brought by Challenge MFG Co., LLC (“Challenge”) against Metokote Corp. (“Metokote”), an automatic parts coating supplier. Applying the predominant purpose test, the court reversed the trial court and concluded that Article 2 did not apply to the contract. Challenge provides to General Motors (“GM”), among other things, a metal part called a “plenum,” which GM requires to be coated so it is rust-resistant. Pursuant to the contract, Challenge shipped uncoated plenums to Metokote, Metokote coated the plenums with a permanent e-coat in a twenty-step process, then shipped them back to Challenge. A dispute developed when Metokote increased its price from $1.50 in 2014 to $1.61 in 2017 and then finally to $1.95 in 2019. The court focused on the process of coating the plenums, noting that GM required the plenums be rust resistant and that Challenge could not supply the plenums without the coating. Moreover, the thin coating could not be removed and Challenge performed additional work on the fixtures before sending them to GM. Ultimately, the court concluded “[a]lthough the e-coating material itself may be characterized as constituting a good, it was incidental to the larger service MetoKote supplied, its application.” As such, the common law applied.

Statute of Frauds

To be enforceable, an agreement to buy and sell goods for a price of $500 or more must normally be evidenced by one or more signed writings, unless an exception applies. Moreover, the requirements of section 2-201 must be met for modifications of contracts within its provisions pursuant to section 2-209(3). In Monaco Industries LLC v. Fomento Economic Mexicano, the court considered a claim by Monaco Industries LLC (“Monaco”) that it had a contract to sell paper products to Fomento Economic Mexicano S.A.B. De C.V. dba FEMSA (“FEMSA”) based on several email communications over several months. While Monaco received some purchase orders from FEMSA, FEMSA ultimately decided to use a different supplier exclusively. Monaco brought suit for breach of contract and other claims and FEMSA filed a motion to dismiss, which the court granted in part. Monaco admitted there was not a fully integrated contract, but argued the parties’ emails were multiple records that satisfied section 2-201. The court disagreed on the facts of the case and found the emails did not contain a quantity term or establish an exclusive-dealings contract. Because there were no records that evidenced a contract, a quantity term, or an exclusive-dealings contract, and none of the exceptions applied, the statute of frauds was not satisfied and the motion to dismiss was appropriate.

Contract Formation

Sections 2-204 through 2-207 govern contract formation under Article 2. Section 2-204 abrogates a strict requirement of offer and acceptance, providing instead that an agreement may be reached in any manner and can subsequently be found to exist even if the moment of its creation cannot be determined. Section 2-205 validates firm offers made by merchants in a signed writing even in the absence of consideration. Section 2-206 permits a party to accept an offer by “prompt or current shipment” of goods or a promise to do so, whereas section 2-207 permits formation of a contract even when an acceptance contains additional or different terms, so long as acceptance is not expressly conditioned on assent to the terms.

The decision in ASD Specialty Healthcare LLC v. Community First Healthcare of Illinois, Inc. turned on the application of sections 2-206 and 2-207. Community First Healthcare of Illinois (“Community”) began ordering Remdesivir from ASD Specialty Healthcare LLC (“ASD”) in 2020. ASD shipped the orders, which Community accepted and used for patients admitted to its hospital with COVID-19. ASD sent Community more than forty invoices for the Remdesivir, none of which were objected to by Community, each of which stated that “failure to pay could result in late fees of 1.5% per month or 18% per annum.” Community objected to the price and the late charges and did not pay the ASD invoices in full. ASD sued for breach of contract and other claims in the amount of $484,167.26, which included the balance and late fees. The court granted ASD’s motion for summary judgment.

The court first found that Community was a merchant under section 2-103 by virtue of its operation of a hospital and pharmacy as it “holds itself out as having knowledge and skill particular to using those pharmaceuticals to treat people who are ill,” such that it is considered to be acting in a “mercantile capacity,” which is sufficient for purposes of section 2-103’s merchant status. The court next concluded that acceptance of Community’s orders of the Remdesivir was made under section 2-206 when ASD promptly shipped the drug and sent the invoice. Finally, the court found the late fee provisions on the invoice would be part of the contract, unless they materially altered the contract under section 2-207(2), as Community did not object to the additional term. The court concluded the late fee was not a material alteration, even though Community could not afford the interest as it was struggling financially and the interest provision was in small print, where the single page of terms on “the invoices do not contain such a large amount of fine print so as to result in unreasonable surprise.” Accordingly, there was a contract that included the interest and summary judgment in favor of ASD on the unpaid account was proper.

The analysis in TRC Electronic Inc. v. Agrify Corp. involved section 2-207, focusing on an attempt by Agrify Corp. (“Agrify”), which bought electronic components from TRC Elec., Inc. (“TRC”), to compel arbitration of the parties’ contract dispute. TRC’s credit contract provided that it applied to products ordered from it and any dispute under the contract would be decided “in the state courts for Bucks County, Pennsylvania or the federal courts for the Eastern District of Pennsylvania” and any acceptance was “expressly conditional” on acceptance by the other party of TRC’s terms. Agrify’s purchase orders to TRC included its own terms and conditions providing for arbitration of disputes and that its acceptance was limited to its own terms. The court concluded the parties did not form a contract because each form was conditioned on acceptance of its own terms. However, through the conduct of the parties under section 2-207(3), the court found a contract based upon the three transactions where TRC procured the electrical components for Agrify, which Agrify received and made partial payment for. The contract, though, did not include arbitration or forum selection because applying section 2-207(3) the parties’ writings did not agree on arbitration, such that the provisions “knock each other out.” Accordingly, the court denied the motion to compel arbitration.

Output, Requirements and Exclusive Dealings

Section 2-306 recognizes that parties may make a contract whereby the quantity is measured by the good faith output or requirements of the parties and can also make contracts for exclusive dealings. Applying this provision, the analysis in MSSC, Inc. v. Airboss Flexible Products Co., considered a claim by MSSC, Inc. (“MSSC”) that it entered into a requirements contract for automotive parts with Airboss Flexible Products Co. (“Airboss”) which obligated Airboss to continue selling to MSSC. The trial court granted summary judgment to MSSC, which the court of appeals affirmed, but the Michigan Supreme Court reversed, agreeing with Airboss that the contract was not a requirements contract, but instead was a “release-by-release” that permits either party to exit the relationship by not accepting a new release. The court noted that the purchase order contract provided for “blanket orders” with “blanket policies governing the sale of parts” between the parties but did not contain a quantity term or otherwise contain language creating a requirements contract. Accordingly, the court reversed the trial court and remanded the case.

In a similar case, the analysis in Higuchi International Corp. v. Autoliv ASP, Inc. involved a motion for declaration brought by Higuchi International Corp. (“Higuchi”), a seller of seatbelt systems, that purchase orders were not enforceable. Pursuant to purchase orders executed by the parties, and the “Statement of Work” included, Higuchi agreed to a “blanket contract” to cover and make delivery of the “requirements” of listed parts for Autoliv ASP, Inc. (“Autoliv”). Higuchi brought suit alleging the “blanket” term made the contract unenforceable for lack of a quantity term, unless Higuchi later approved a specific release of product and Autoliv filed a counterclaim seeking an injunction to compel Higuchi to supply the parts. Higuchi filed a motion for declaratory judgement and Autoliv filed an emergency motion for preliminary injunction. The court denied Higuchi’s motion and dismissed its complaint and granted Autoliv’s motion.

The court distinguished MSSC, Inc., discussed above, and rejected Higuchi’s argument that it was entitled to a declaratory judgment because the purchase orders provided for a “blanket contract” without a quantity term, such that the parties would operate only on a release-by-release purchase arrangement. Instead, the contract language specifically provided for Autoliv’s requirements of parts, which is enforceable under section 2-306 subject to good faith. Moreover, the court noted that the use of the word “requirements” would mean “all requirements,” even though neither the contract nor section 2-306 use the word “all.” As the purchase orders were requirement contracts, any failure to perform by Higuchi would be a breach of contract and Autoliv would, therefore, be likely to succeed on the merits of its case. The court agreed that any breach by Higuchi would cause harm to Autoliv’s reputation, damage the supply chain, and Autoliv should not be forced to pay higher prices to Higuchi, then bring suit afterwards. Because the public interest was served by preventing a “shutdown of the automotive supply chain,” a preliminary injunction in favor of Autoliv was appropriate.

Warranties

Privity

Privity of contract is generally required to assert a successful breach of contract action, but in the warranty context, the traditional notions of privity are sometimes relaxed. The court in In re 3M Combat Arms Earplug Products Liability Litigation applied the Alabama version of section 2-318; however, it underscored the importance of the character of the claim. Former service members brought claims for alleged injuries from use of earplugs during military service. The manufacturer moved for summary judgment to dismiss the breach of implied warranty claims for lack of privity. The court found the buyers had properly alleged a breach of implied warranty of merchantability claim and section 2-318 precluded dismissal of the claim where the users were personally injured. Accordingly, the court denied the manufacturer’s motion for summary judgement and the earplug users could assert a claim for breach of implied warranty against the manufacturer.

Warranty Creation and Disclaimers

The decision in Hagerty Insurance Agency, L.L.C. v. Luxury Asset Capital, L.L.C. turned on the implied warranty of title and against infringement under section 2-312. Luxury Asset Capital, L.L.C. (“Luxury”), a pawnbroker, financed the purchase of a 2015 Rolls Royce for Kathryn Thompson, which it later reclaimed when she failed to pay. Mortenson purchased the car from Luxury for $127,000 “as is,” but later found out the vehicle identification number was forged and the car was stolen property, thus the car was impounded and not returned. Mortenson and its insurer brought suit for claims including breach of warranty of good title. The court granted summary judgment to Mortenson and Luxury appealed. The court first concluded the “as is” language and the general disclaimer of “any express or implied warranties” in the contract were not sufficient to exclude the warranty of title. However, the court noted that “circumstances” can also operate to exclude the warranty of title where it is apparent to the buyer the transaction is out of the ordinary commercial context. Mortenson knew Luxury was a pawnbroker exercising rights as a non-bank lender vis-à-vis the vehicle and neither the bill of sale nor South Carolina title for the vehicle listed Luxury as the owner of the vehicle. While the evidence was not sufficient as a matter of law to negate the warranty of title, the evidence “could support a reasonable factual finding that the sale was of such a peculiar character.” Nevertheless, other evidence was not sufficiently clear such that summary judgment was not appropriate. As such, the court reversed the lower court decision in favor of Mortenson on the breach of warranty claim under section 2-312.

“Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain” can create an express warranty. The decision in Petti v. Deridder turned on a claim for breach of both express and implied warranties. Paulette Petti (“Petti”) purchased a Kenmore washer and dryer on Facebook Marketplace for $500 from Jessica Deridder (“Deridder”). Prior to purchase, Petti contacted Deridder about the condition of the machines and Deridder responded that “[t]hey both work great and are quiet.” Petti sued for breach of warranty after the washer and dryer leaked and did not work properly due to a bad computer board requiring more than $600 worth of repairs. The court held that no warranty of merchantability under section 2-314 attached because Deridder was not a merchant. Moreover, the court held there was nothing in the Facebook Marketplace communications to support a warranty of fitness for particular purpose because Petti did not “rel[y] upon defendant’s skill and judgment to select the washing machine.” As to express warranty, though, the court found that while the advertisement did not make express warranties, Deridder’s “statement that the washer and dryer ‘work great’ was an affirmation of fact about the appliances that was likely to induce plaintiff to purchase.” The court noted that any defense based on Petti causing the damage was “mere speculation.” Accordingly, Petti was entitled to $250 in damages, plus the filing fee of $10 for breach of express warranty.

The decision in BC Dental Inc. v. Robinson Helicopter Co. turned on claims that included breach of express and implied warranties and a disclaimer under section 2-316 arising from a helicopter crash. BC Dental, Inc. (“BC Dental”) purchased a helicopter manufactured by the Robinson Helicopter Co. (“Robinson”) that malfunctioned and eventually crashed while on a test flight at the repair facility. Robinson argued, and the court agreed, that the express warranty required BC Dental to provide Robinson with a “written warranty claim as required by the warranty.” As to BC Dental’s claim of breach of the implied warranty of merchantability, Robinson argued that it disclaimed “any implied warranties of merchantability” in language that was printed in all capital letters. The court agreed, noting that “[b]ecause the disclaimer is in writing, is conspicuous, given that it was part of the express warranty that came with the helicopter, and explicitly mentions merchantability, any implied warranty has been disclaimed.” As such, the court granted Robinson’s motion to dismiss both the implied and express warranty claims, with leave to amend the complaint.

Title, Creditors, and Good Faith

Section 2-401 provides that the title to goods does not pass prior to identification of the goods in the contract, but unless otherwise agreed, title passes when the seller completes his performance regarding physical delivery of the goods. Section 2-403 permits: (i) a person possessing only voidable title to transfer good title to a good faith purchaser for value and (ii) a merchant who deals in goods of the kind to transfer all rights of an “entruster” of the goods to a buyer in the ordinary course.

Performance and Breach

Excuse

Section 2-615 provides excuse for a breach of contract where performance is made “impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made” and permits a seller to allocate production where the cause does not affect the seller’s entire capacity. Doman v. Heartland Recreational Vehicles, L.L.C. involved a claim by Jenny and Trent Doman (“Domans”), buyers of an recreational vehicle (“RV”), for breach of contract where the seller, Heartland Recreational Vehicles, L.L.C. (“Heartland”), failed to compensate Doman or provide a new RV after the Domans’ newly purchased RV burned up (along with the Domans’ truck and ATV) and was declared a total loss. The Domans paid $125,672.47 for the RV and the limited warranty provided for repair of any defects or for a “back-up remedy” of “diminution in value damages” or for a “similar replacement recreational vehicle.” Heartland moved to dismiss the case, asserting that the Domans “did not avail themselves of the warranty’s limited repair remedy” by returning the RV for repairs. The court first concluded that the burning of the RV by flames, thus destroying itself, resulted in the failure of the limited warranty’s essential purpose under section 2-719, “and to strictly enforce the repair remedy would leave the Domans without a remedy,” which the Court found was outside of the contemplation of the parties at the time of contracting. Moreover, Heartland failed to employ other remedial measures, such as damages or a replacement RV, when requested by the Domans.

The court then turned to section 2-615 to find that the fire relieved the parties of their responsibility to comply with the limited remedy. The court noted that “the total destruction of the RV no doubt fits the description” of the type of loss for which excuse is granted as it is “literally impossible” for Heartland to make the repair. Moreover, the event was not allocated by the agreement and not anticipated by the parties. Finally, the court observed it would be “absurd” to interpret the limited remedy as requiring the Domans to present the RV for repair which “could only service as a delay tactic.” Accordingly, the Domans’ defenses to their obligations under the limited warranty were viable and the court denied Heartland’s motion to dismiss.

Rejection, Cure, Acceptance, and Revocation of Acceptance

Section 2-601 provides that a buyer receiving a non-conforming tender can reject, accept, or accept any commercial units and reject the remainder. A seller may have a right to cure a non-conforming tender under section 2-508, particularly where the time for performance has not yet expired. A buyer that fails to make an effective rejection under section 2-602, though, is deemed to have accepted the goods under section 2-606. Section 2-608 provides aggrieved buyers with a limited right to revoke acceptance of non-conforming goods. For a buyer to exercise this right under section 2-608, the nonconformity must substantially impair the value of the goods, and the buyer must have accepted the goods either on the reasonable assumption that the nonconformity would be cured or without discovering the nonconformity because discovery would be difficult, or because of the seller’s assurances.

The decision in Kettering Adventist Healthcare v. Jade Designs, L.L.C. turned on the application of sections 2-508, 2-601, and 2-608. Kettering Adventist Healthcare (“Kettering”) contracted to purchase 300,000 3M N95 masks from Jade Design, LLC (“Jade”) with delivery by December 22, 2020 (later changed to December 27, 2020) for a total price of $1,185,000, which Kettering paid. On January 13, 2021, Kettering reported to Jade that the masks were counterfeit and not 3M brand, which was confirmed later by 3M, which advised Kettering not to use them. After Jade did not issue a refund, Kettering brought suit for breach of contract and other claims. Both parties moved for summary judgment, both of which the court granted and denied in part.

Initially, the court found that the contract specifically required 3M brand N95 masks and that Jade provided non-conforming goods under section 2-601’s perfect tender rule. The court next concluded that Kettering’s actions in notifying Jade of the counterfeit masks, demanding a refund by letter less than six weeks after delivery, and advising that Jade could provide for return of the goods at its expense were consistent with a revocation of acceptance under section 2-608. Moreover, Kettering’s retention of the masks until Jade made the required refund was consistent with its right to a security interest in goods in Kettering’s possession. The court found Jade was not entitled to cure the tender of the defective masks under section 2-508, as the time for performance had long passed and Jade did not notify Kettering of any attempt to cure.

Finally, the court considered Jade’s argument that the common law doctrine of substantial performance applied even to Article 2 cases, but the court concluded that “even if the doctrine of substantial performance applies to UCC contracts in Ohio, [Jade] failed to substantially perform under the contract” such that it breached. As such, the court entered judgment in favor of Kettering on liability. The decision seems correct on the whole, with the exception of the discussion “assum[ing] arguendo that the substantial performance doctrine applies to UCC contracts.” Lorad, LLC, discussed earlier in the Survey, also examined substantial performance in the context of an Article 2 sale and found that the seller had not shown the doctrine applicable to an Article 2 sale, but then also “assum[ed] arguendo” that it applied. This part of both decisions seems wrong, as the doctrine of substantial performance does not apply wholesale to Article 2 contracts and is inconsistent with the perfect tender rule.

Installment Contracts

The decision in Wayne Manufacturing, L.L.C. v. Cold Headed Fasteners & Assemblies Inc. turned on the application of section 2-612 to installment contracts. Wayne Manufacturing, LLC (“Wayne”) contracted to purchase specially designed bolts from Cold Headed Fasteners and Assemblies Inc. (“Cold Headed”) that Wayne would use for automotive retainer assemblies needed for another contract with Dana Holding Corporation (“Dana”). During the first years of the contract, there were no problems. In 2020, though, Cold Headed was late on delivery and Wayne sent notice that thousands of automotive assemblies had problems due to the bolts not meeting the required heat specifications. While Cold Headed offered to cure, Dana would no longer accept products with Cold Headed bolts after October 12, 2020, due to the extensive nature of the problems. Wayne settled the claims with Dana for $243,000 and when Cold Headed did not compensate Wayne for its losses, Wayne brought suit for breach of contract, and both parties cross motioned for summary judgment.

The court found that the parties’ contract was an installment contract subject to section 2-612 and, as such, in order to cancel the contract, Wayne must prove the installment was nonconforming and the non-conformity “substantially impair[ed] the value of the whole contract.” First, the court held that Cold Headed’s installment for Batch 2C was nonconforming to the contract specifications where Wayne identified over 20,000 bolts that were “soft.” Second, the contract provided for what type of non-conformity would be considered substantial impairment if the delivery did not meet the required standards, which Batch 2C did not. Cold Headed’s installment breached the whole of the contract when Dana refused to even “use assemblies with Cold Headed parts.” Moreover, Cold Headed was not permitted to cure the defective installment due to the “breach of the whole.” The court also rejected Cold Headed’s claim that it did not receive proper notice in light of the October 2020 notices regarding the defective bolts. Accordingly, the court granted summary judgment to Wayne.

Remedies

Seller’s Remedies

Section 2-703 generally permits an aggrieved seller to withhold delivery of goods, cancel, and to pursue specified remedies, including resale, under section 2-706, by a seller with possession of the goods; recovery of the difference between the market price and the contract price under section 2-708; or recovery of the price under section 2-709. Sellers are also entitled to incidental damages but not consequential damages.

Buyer’s Remedies

Section 2-711 generally permits an aggrieved buyer to pursue specified remedies, including the recovery of payments made to the breaching seller. Section 2-712 entitles an aggrieved buyer to “recover” by making reasonable, good-faith purchases of substitute goods. In cases where the goods are accepted, an aggrieved buyer may pursue recovery under section 2-714, which provides that an aggrieved buyer’s damages are measured by the difference between the value of the goods as accepted and the value of the goods as warranted. An aggrieved buyer can also deduct its damages from the price owed to the seller for the goods under the same contract. Buyers are also entitled to both incidental and consequential damages. Limitations of, additions to, or substitutions for remedies set forth in Article 2 are permitted pursuant to section 2-719, unless the agreed remedy fails of its essential purpose.

The decision in State v. Please Me, L.L.C., turned on a buyer’s request for recovery of the price under section 2-711. The State of New York contracted with Please Me, LLC (“Please Me”) for the purchase of 1000 ventilators during the COVID-19 pandemic, for which the buyer paid $12.5 million toward the purchase. When Please Me failed to deliver the ventilators, the State cancelled the contract, requested return of the $12.5 million, and eventually brought suit for breach of contract. The State moved for summary judgment, which the court granted. The court found that under section 2-711, the State was entitled to return of the price paid and was not required to purchase alternative ventilators as cover. Moreover, the State was entitled to pre-judgment interest of 9 percent and collection costs of 22 percent as provided under state law. Accordingly, the court granted summary judgment to the State in the amount of $12,500,000, plus interest, for the price paid and $2,750,000 for the collection fee.

The decision in Wayne Manufacturing, L.L.C., discussed earlier in the Survey, applied section 2-714 and 2-715 to evaluate whether to grant the buyer summary judgment on its claim for $254,394.20 in consequential damages after the seller delivered nonconforming bolts. Wayne had to settle with its contracting party, Dana, and incurred internal costs associated with the breach. The court found that the $254,394.20 paid to Dana in settlement for the defective bolts provided by Cold Headed was foreseeable where Cold Headed knew its contract was for the purpose of satisfying the contract with Dana by incorporating the bolts into its products, which would then be provided to Dana. As the provider of the defective product, the court found the amount was attributable to Cold Headed and recoverable consequential damages under section 2-715(2). Additionally, the court agreed that the buyer was entitled to its internal costs of $60,453.76 for “sorting, testing, and scrapping Cold Headed’s soft bolts” as arising from the ordinary course of the breach under section 2-714. Finally, the credit given to Cold Headed for unpaid invoices was proper, such that Wayne only sought only the “benefit of their bargain and no more.” Therefore, Wayne was entitled to damages of $254,394.20.

Statute of Limitations

Article 2 generally requires that actions for breach be brought within four years of when the cause of action accrues, but the parties may shorten the limitations period to “not less than one year.” A cause of action generally accrues at the time of tender of delivery, but a warranty can run to future performance, such that the statute of limitations runs from the time of discovery of the breach (possibly extending beyond four years of the sale) under section 2-725 (2). Plaintiffs who delay filing a lawsuit and come up against the statute of limitations often make creative arguments to avoid the dismissal of their suits as time-barred.