Can the Tolling of Statutes of Limitations Based on the Defendant's Absence from the State Ever Be Consistent with the Commerce Clause?

Article excerpt

Most states have legislation that tolls applicable statutes of limitations during the time a defendant is absent from the state. (1) In 1988, the United States Supreme Court held in Bendix Autolite Corp. v. Midwesco Enterprises, Inc. that such tolling provisions violated the Commerce Clause when applied to nonresident corporations. (2) Since then, courts in several jurisdictions have considered the constitutionality of these statutes with respect to other categories of defendants. In some states, courts narrowly defined the statutory term "absence" to exclude individual defendants who, although physically absent from the state, are amenable to service of process under the laws of the forum state. (3) This limiting construction largely eliminates tolling applications that may run afoul of the Commerce Clause. (4)

However, courts in other jurisdictions have construed the tolling provisions in their state statutes to apply whenever the defendant is physically absent from the forum state, regardless of whether that defendant is still amenable to service of process. (5) These courts also conclude that such tolling provisions violate the Commerce Clause when applied to nonresident individuals, (6) as well as to resident individuals whose absence from the forum state was for business reasons. (7) Under the reasoning employed by these courts, the applicable statutes of limitations will not be tolled during the time the defendant temporarily leaves the forum state for a non-business purpose, such as for a vacation in another state or country. (8)

This Article discusses the propriety of these Commerce Clause decisions with respect to individual defendants. More precisely, this Article examines two questions. The first is whether the Supreme Court's holding in Bendix was properly extended to individual resident and nonresident defendants. The other, and more difficult, issue concerns the proper application of the Commerce Clause to state statutes that toll the statute of limitations during the time a resident defendant is temporarily absent from the state. The Article focuses on whether such provisions violate the Commerce Clause regardless of the reason for the absence.

Part I of this Article examines the nature and operation of state statutes that toll statutes of limitations during a defendant's absence, as well as the reasons why many states enacted such legislation. Part II discusses dormant Commerce Clause jurisprudence generally, and its application to tolling provisions based on absence from the state. This Part summarizes both the Supreme Court's decision in Bendix, which invalidated certain absence-based tolling provisions when applied to nonresident corporations, and state and lower federal court decisions that extended Bendix to individual defendants. (9) Part III addresses the two issues identified in the previous paragraph and concludes that the extension of Bendix to individual defendants is clearly appropriate. This Part also explains why absence-based tolling violates the Commerce Clause when applied to a resident defendant who temporarily leaves the state, regardless of the purpose of the out-of-state travel. Finally, this Article concludes that absence-based tolling survives Commerce Clause scrutiny only in very limited circumstances. (10)

I. TOLLING BASED ON ABSENCE FROM THE STATE

As mentioned previously, most states have legislation that tolls statutes of limitations during a defendant's absence from the state. (11) For example, the California statute, which is typical of many of these tolling provisions, provides:

   If, when the cause of action accrues against a person, he is out of
   the state, the action may be commenced within the term herein
   limited, after his return to the state, and if, after the cause of
   action accrues, he departs from the state, the time of his absence
   is not part of the time limited for the commencement of the
   action. … 

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