Legal Memorandum: Statute of Limitations – Equitable Tolling

Issue: Does an initial filing in District Court equitably toll the limitations period on a plaintiff’s tort claims?

Area of Law: Litigation & Procedure, Personal Injury & Negligence
Keywords: Statute of limitations; Equitably tolled
Jurisdiction: Virgin Islands
Cited Cases: 700 P.2d 1327
Cited Statutes: None
Date: 04/01/2006

The Virgin Islands applies an equitable rule for determining whether a statute of limitations is tolled when the plaintiff timely files suit in a forum that is subsequently determined to lack jurisdiction.  See Island Insteel Sys., Inc. v. Waters, 296 F.3d 200, 215, 217, 219 (3d Cir. 2002); Simmons v. Martinez, No. Civ. 617/1998 (Terr. Ct. Aug. 5, 2003).  The rule applied in the Virgin Islands is the one described by the Arizona Supreme Court in Hosogai v. Kadota, 700 P.2d 1327, 1333 (Ariz. 1985).  See Island Insteel, 296 F.3d at 217.  

The applicable rule consists of three elements or prongs:

[A] statute of limitations is equitably tolled for a second action by the filing of a procedurally defective first action if there is: “1) timely notice to the defendant in filing the first claim; 2) lack of prejudice to the defendant in gathering evidence to defend against the second claim; [and] 3) reasonable and good faith conduct by the plaintiff in prosecuting the first action and diligence in filing the second action.”

Id. (quoting Hosogai, 700 P.2d at 1333).

As to the first prong of the rule, “it is necessary that the first action be filed within the limitations period and that both actions involve the same basic right or claim.”  Hosogai, 700 P.2d at 1333.

“The second prong requires that the facts of the two actions be sufficiently similar so that defendant’s investigation of the […]

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