What if Statute of Limitations Expires During a Closure

What happens when the statute of limitations on filing a case expires during a time when courts are shut down? If all of the courts are shutting down for months, due to an emergency, what does this mean for people who have a case that needs to be filed because the statute of limitations is running next week?

The answer is not simple. When a hurricane or other weather or emergency event disrupts normal court operations, it can result in court closings. Courts can also close on their own by an order of court. Or a governor or other high official might issue an emergency declaration that closes all government offices including the courts.

We need to ask ourselves some questions in order to arrive at a solution.

Does a governor have the ability to issue an emergency declaration that says that a statute of limitations will not be enforced? Maybe yes, maybe no. My experience says: no.

A statute of limitations is something that is a creature of a legislative body. A defendant who is sued after the statute of limitations expires, might well argue to a court that a state governor has zero authority whatsoever to extend a deadline for filing a lawsuit, only a legislature can do that. Many court judges would agree.

Could a governor order a legislature to pass a law, or extend a deadline? No. Of course not. That would be like a president ordering Congress to pass a law.

The safest bet for analyzing what to do if the statute of limitation expires during a time where the courts are closed during an emergency is to look to ordinary court rules that the courts operate under every single day.

For example, in Indiana, ordinary court rules, called the Trial Rules, say that if your statute deadline ends on a weekend or a holiday when the court is closed, that the statute deadline is suspended or tolled, until the next day that the court is open.

So, if the time to sue expires on Memorial Day, and the Courts are closed, then you have until the next day to file.

But what happens if some courts are open and other courts are closed, and you could file suit in an open court? Confusing right?

The rule focuses on a court closure due to a “recognized non-business day or a holiday”, and not the whims of any given judge. So let’s say Judge John Doe decides to close court to golf one fine afternoon; the court is in fact still open under the rules, and you get no grace day just because the judge takes the afternoon off.

If there is an extended closure of government offices, it’s quite possible that if that statutory deadline passes and the case isn’t filed in a timely fashion a court could entertain a motion to dismiss a lawsuit based on the fact that the case wasn’t filed in a timely manner arguing that the closure wasn’t due to a normal weekend or an official holiday. Rather, the closure was based on an illegal or unconstitutional order by a governor or other official.

Here is where we come down on the issue. If a client comes in with a statute expiring during an emergency closure, we would advise them that we file the case promptly via a court’s electronic filing system if the e-filing system is open.

Since cases can be filed electronically nowadays, and since the courts themselves can be closed while the electronic system that allows you to file pleadings and other papers with the court, remains open, this is a sound plan. If the e-filing system is off-line, we would say send in the filing via certified mail post-marked before the statute expired.

So here is the bottom-line, contact an attorney as quickly as possible BEFORE the statutory deadline expires (even if the courts are temporarily closed) and work with that attorney to get your case filed electronically before the deadline expires (or sent in by certified mail), and fall back on immediately filing once the courts are again open if there is no electronic means of filing (or no mail service). The goal is to eliminate as many potential objections as possible that a defendant could raise to try to throw your case out of court.

That said, if you’re in a situation where the courts are closed for months, whether for emergencies such as hurricanes or the like, or for quarantines and pandemics, and your time to sue has expired. You should STILL contact an attorney and find out what can be done to assist you to get your case on file even if late. A persuasive argument can always be made to the court that a defendant is estopped from having your case tossed out because you reasonably relied on a governmental order tolling the statute of limitation. As someone famous once said “never give up”.


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