November 27, 2019 Practice Points

The Many Ways to Extend a Limitations Period

Key definitions and distinctions relevant to the many doctrines that may be employed.

By Mark E. Rooney

The Supreme Court recently held oral argument in Rotkiske v. Klemm, a case examining whether the “discovery rule” can be invoked to extend the one-year statute of limitations under the Fair Debt Collection Practices Act. During the oral argument, Justice Sotomayor seemed to summarize the view of all nine justices—not to mention the advocates—when she said that the discovery rule, and similar doctrines applicable to statutes of limitations, can be “terribly confusing.”

To make sense of the confusing and often overlapping doctrines, Justice Breyer called to mind his “bible” on the issue—Judge Posner’s opinion in Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th Cir. 1990).

With assistance from the Cada decision, here are some key definitions and distinctions relevant to the many doctrines that may be employed to extend a limitations period:

  • Statutory discovery rule. When a statute itself ties the limitations period not to a violation of the law but to the “discovery” of it. See, e.g., 28 U.S.C. § 1658 (for certain securities claims, tying limitations period to “the discovery of the facts constituting the violation”).
  • Common-law discovery rule. This doctrine is “read into statutes of limitations in federal-question cases [. . .] in the absence of a contrary directive from Congress.” It “postpones the beginning of the limitations period from the date when the plaintiff is wronged to the date when he discovers he has been injured.” Cada, 920 F.2d at 450.
  • Equitable estoppel. In the context of a statute of limitations, this is also called fraudulent concealment. It “presupposes that the plaintiff has discovered” the injury but may elongate the limitations period where a defendant takes other steps to stop the plaintiff from filing suit (e.g. by promising not to sue). Id. at 451.
  • Equitable tolling. Where a plaintiff knows he or she is injured but cannot, through the exercise of reasonable diligence, “obtain information necessary to decide whether the injury is due to wrongdoing and, if so, wrongdoing by the defendant.” Id.

Application of these different doctrines is often fact-specific, and there are exceptions to the general rules described here. When in doubt, take Justice Breyer’s advice and read the Cada decision.

Mark E. Rooney is a partner at the law firm Hudson Cook, LLP in Washington, D.C., and cochairs the Consumer Litigation Committee’s Subcommittee on TCPA and FDCPA Litigation.


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