to avoid incidents of the kind claimed by plaintiff to have occurred. I direct defendants to provide to defense counsel any reports in their possession concerning the incident claimed by plaintiff, concerning precautions taken to avoid risks of incidents of the type claimed to have occurred in this case, and concerning any injuries sustained by plaintiff at the time, and I direct plaintiff to provide to counsel for defendants any available information relevant to such injuries, if any. Other discovery is stayed unless otherwise ordered.
Apart from their challenge to the substance of the complaint, defendants seek dismissal of the complaint as untimely. The applicable period of limitations is three years, borrowed from NY CPLR § 214, as set forth in Wilson v. Garcia, 471 U.S. 261, 266-67 (1984). Pursuant to CPLR § 205, the running of the limitations period is tolled during the pendency of this action, including prior complaints which were dismissed with leave to replead. See Cullen v. Margiotta, 811 F.2d 698, 727 (2d Cir.), cert. denied sub nom. Nassau County Republican Committee v. Cullen, 483 U.S. 1021 (1987); Harris v. United States Liability Ins. Co., 746 F.2d 152 (2d Cir. 1984); Delgado v. New York City Dept. of Correction, 797 F. Supp. 327 (S.D.N.Y. 1992).
On the assumption that new process was required to be served, under Fed.R.Civ.P. 3 the filing rather than service of the complaint is the applicable event with regard to satisfaction of the statute of limitations in this federal question case, even though the limitation period is borrowed from state law. West v. Conrail, 481 U.S. 35, 38-39 (1986) makes it clear that this is so irrespective of state law with regard to necessity for service.
Defendants argue that a decision on a motion to dismiss rather than entry of judgment under Fed.R.Civ.P. 58 marks termination of a case for purposes of restarting the running of time limitations. This concept is contrary to federal treatment of what constitutes termination of a case for the analogous purpose of starting the running of time to appeal under Fed.R.App.Proc. 4 and is not supported by any references to federal case law. Such law, rather than state law, is relevant here under West.
Moreover, defendants' approach would create the bizarre consequence that repleaded complaints would be treated as new lawsuits with a new docket number, possibly assigned to a new judge unless submitted as cases related to the prior lawsuit, and would have to be served on the parties rather than on counsel who remain in the case as called for by Fed.R.Civ.P. 5, even if judgment had not been entered dismissing the original suit. To permit a defendant to acquiesce in the original case remaining open rather than being closed by judgment, and then to assert that the statute of limitations had run would also be to allow one creating confusion to benefit from it. This is not permissible, inasmuch as ". . . equitable estoppel has been applied to prevent a defendant from relying on a limitations bar if that defendant has contributed to confusion. . ." Schrader v. Royal Caribbean Cruise Line, 952 F.2d 1008, 1013 (8th Cir. 1991).
Defendants do not dispute that under these legal interpretations the present complaint is timely.
Dated: White Plains, New York
March 4, 1993
VINCENT L. BRODERICK, U.S.D.J.