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Practice Tip: Foreign Statutes of Limitations

By Lawrence Goldhirsch and David Rosenband

When you file a suit on behalf of an out-of-state plaintiff, the state in which you file may have a borrowing statute. This type of statute usually prevents forum shopping by requiring the out-of-state plaintiff to file his case in the forum state within the statute of limitations permitted by his home state. If the home state's limitations period is longer than the forum's limitations period, then the forum limitation period applies. In essence, the plaintiff's claim must be timely under both the home and forum limitations period. However, it is not enough solely to look at the statute of limitations of the home and forum states as there may be tolling statutes or provisions that apply to the case.

Unless the attorney researches what is usually a complicated issue, he will not be aware at the outset of the case as to what the plaintiff's home state limitations period is. It is not enough to look up the time in which to file a negligence case, often found in tables covering the 50 states, as many states now have enacted special product liability acts that limit such cases when sounding in strict liability in tort or warranty. In order to see if your client's case is timely, you would also have to research the applicable tolling rules, such as absence from the state or date of discovery of the injury rules, all of which may toll the applicable limitations period. Additionally, some states have consumer fraud statutes permitting causes of action for personal injury and those may have yet another limitations period.

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