When Refiling a Civil RICO Claim After Dismissal Without Prejudice, Plaintiff Must Still Refile Within the Applicable Limitations Period

Crowe v. Servin, 2018 WL 555446 (10th Cir., Jan. 25, 2018)

The Tenth Circuit affirmed the lower court’s dismissal of Plaintiff’s second RICO action against the same defendants concluding that Crowe’s claims were time-barred. The district court discussed that statute of limitations for civil RICO claims is four years from either the discovery of the injury or the date the injury occurred. The district court reasoned that Crowe must have discovered her injury no later than May 2011, when she filed her first RICO action against these defendants. So it concluded that the claims in this case—filed more than six years later—fell well outside the four-year statute of limitations.

Crowe, who was imprisoned during that six year time period, argued for equitable tolling. But the district court concluded that she hadn’t shown (1) that she’d been affirmatively misled by the court or (2) that any other grounds for equitable tolling existed. Since Crowe’s challenge to the district court’s decision focused entirely on the equitable-tolling question, the Court reviewed a “district court’s refusal to apply equitable tolling for an abuse of discretion.”

The Court discussed that a litigant seeking equitable tolling must show “(1) that [s]he has been pursuing [her] rights diligently, and (2) that some extraordinary circumstances stood in [her] way.”. A litigant can satisfy the extraordinary-circumstances requirement by demonstrating that a district court affirmatively misled him or her by, for example, providing the litigant with inaccurate instructions. The district court concluded that Crowe’s incarceration didn’t excuse her failure to prosecute.

Nor did the district court direct Crowe to refile at a later time simply by dismissing the case without prejudice. A dismissal without prejudice just means that the plaintiff isn’t barred “from refiling the lawsuit within the applicable limitations period.” Dismissal, Black’s Law Dictionary (10th ed. 2014) (emphasis added). It doesn’t absolve Crowe of the legal requirement of filing within the applicable statute of limitations. Cf. AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009) (“This court has recognized that a dismissal without prejudice can have the practical effect of a dismissal with prejudice if the statute of limitations has expired.”).

The Court concluded that Crowe hasn’t shown that the district court affirmatively misled her. Nor has she either argued or shown (1) that she has diligently pursued her rights or (2) that other extraordinary circumstances stood in her way. Instead, more than four years elapsed between the date on which the district court dismissed her initial claims and the date on which she filed the instant complaint. And while she was incarcerated for much of that time, there’s nothing extraordinary about litigating from prison; on the contrary, courts routinely process cases brought by prisoners. Thus, the district court didn’t abuse its discretion in refusing to equitably toll the statute of limitations.

Ed Note: Since many civil RICO cases are dismissed without prejudice, the civil RICO plaintiff must be aware the Statute of Limitations continues to run and can bar a subsequent Second Amended Complaint, or subsequent Complaint.

 

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