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  1. #1
    Join Date
    Oct 2014
    Posts
    8,238

    Default Re: Raising the Affirmative Defense of the Statute of Limitations

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    I will try this again.
    I have a suit against someone. The Opposing lawyer raised the Affirmative Defense of Statute of Limitations (with an e-mail to support) - therefore claiming it's too late and I have no cause of action.
    My Lawyer filed a motion to Dismiss but he didn't include facts (there are facts.)
    Now Judge Order: The judge sent an Order that there was enough fact to let the tier of fact determine if defense of statute of limitations is warranted.
    Maybe that helps better explain. From Mr. Knowitall it sounds like my lawyer will need to prepare a brief.

    My lawyer was surprised about the Order received and didn't know what he was going to do next when I asked.
    You may not be using the right terminology here which makes it a bit harder for folks to parse out what is going on. The defendant filed a motion to dismiss and/or raised as an affirmative defense the statute of limitation (SOL). I’ll assume it was a motion to dismiss (though it may also have been included as an affirmative defense in the defendant’s answer) since if it had been raised just as an affirmative defense in the answer the court would not have been prompted to rule on it before trial. A motion, however, would put the issue before the court now. Once the motion to dismiss is filed by the defendant, your lawyer would then file a response to the motion asking the court to deny the motion to dismiss. Your lawyer would not file a motion to dismiss the defendant’s motion because the motion cannot be “dismissed.” The motion is either granted or denied. Here, the court evidently denied the defendant’s motion to dismiss but held that the issue of the SOL is not yet settled and must be resolved by the trier of fact (the judge or jury) after a trial or hearing. What that means is that the resolution of the SOL issue cannot be decided without first having relevant evidence properly presented and admitted in a trial or hearing and have the judge or jury decide what the facts are.

    Let me give you an example. If the SOL statute has a discovery rule, then when the plaintiff discovered that he had a valid claim to bring (or could have discovered it with due diligence) would matter as to when the SOL expired. If the plaintiff and defendant disagree about when the plaintiff learned (or could have learned) about the claim then the court would need to hold a hearing or trial to examine evidence related to when the claim was discovered (or could have been discovered) and then decide from that conflicting evidence what date to peg as the discovery date for purposes of determining the SOL. Because of the need to have a hearing to settle that factual dispute, the court cannot grant the motion to dismiss just based on the arguments made in the motion papers filed by the defendant and the plaintiff’s reply.

    If the problem is that the SOL expired but you are relying on some tolling provision or discovery rule to save it then your lawyer will need to figure out what evidence to provide the court at the hearing or trial to convince the judge or jury that the tolling rule/discovery rule applies and puts you within the SOL. Generally speaking, the burden is on you to prove that a discovery or tolling rule applies.

  2. #2
    Join Date
    May 2011
    Posts
    104

    Default Re: Raising the Affirmative Defense of the Statute of Limitations

    "The motion is either granted or denied. Here, the court evidently denied the defendant’s motion to dismiss but held that the issue of the SOL is not yet settled and must be resolved by the trier of fact (the judge or jury) after a trial or hearing. What that means is that the resolution of the SOL issue cannot be decided without first having relevant evidence properly presented and admitted in a trial or hearing and have the judge or jury decide what the facts are."

    I think I have this, Yes Motion to Dismiss was denied - because the Judges Order which basically said the defendant & Plaintiff disagree on whether the statute of limitations has run on and maybe the statute of limitations has run out - show the facts. Another court date will be set up. Both sides will get to present evidence (or perhaps a summary of events with the relevant paper documents to go with) the judge/jury will look it over and determine if the statutue of limitations as run out. (In my case if it has I'm done.)

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