Statute of Limitations--tolling--federal action
The trial court did not err by allowing defendant's motion
for summary judgment on the basis of the statute of limitations
where plaintiff pursued through the state and federal courts
claims arising from his dismissal as a university professor
following charges of attempted second-degree rape and assault on
a female; assuming that plaintiff's claims accrued when defendant
Board affirmed his dismissal on 9 February 1990, plaintiff
ordinarily would have had until 9 February 1993 to file his
complaint in state court; plaintiff did not file his claim in
state court until 22 May 1996 and his claims were time barred
unless the statute of limitations was tolled; no statute or rule
provides for the exclusion of the time during which the federal
action was pending from the limitations period; and, because
North Carolina has no applicable “grace period” longer than the
thirty-day period set out in 28 U.S.C.A. § 1367, the statute of
limitations was tolled while the federal action was pending and
for thirty days thereafter. Plaintiff could have filed his
complaint in state court at any time during the pendency of the
federal action and up to thirty days after the United States
Court of Appeals reached its decision on 7 December 1995. Appeal by plaintiff from judgment entered 16 February 1998
by Judge Stafford G. Bullock in Wake County Superior Court.
Heard in the Court of Appeals 25 January 1999.
Kenneth N. Barnes for plaintiff-appellant.
Attorney General Michael F. Easley, by Special Deputy
Attorney General David Roy Blackwell, for defendants-
appellees.
TIMMONS-GOODSON, Judge.
Prior to his dismissal, plaintiff was a tenured professor in
the Department of Biological and Agricultural Engineering at
North Carolina State University (hereinafter “defendant
University”). In June 1988, plaintiff was charged with attempted
second-degree rape and assault on a female. On 14 July 1988,
defendant Bruce R. Poulton, then chancellor of defendant
University, issued a notice of intent to discharge letter to
plaintiff suspending him from his duties and terminating his
salary as of 1 January 1989. Plaintiff requested a hearing on
his dismissal pursuant to the Code of the Board of Governors of
the University of North Carolina (hereinafter “defendant Board”).
Following a hearing and recommendation by a Faculty Hearing
Committee that plaintiff be removed from the faculty, defendantPoulton dismissed plaintiff effective 7 February 1989. Plaintiff
appealed to defendant University's Board of Trustees and, then,
to defendant Board. Defendant Board ultimately affirmed the
Board of Trustees' decision on 9 February 1990. Plaintiff
appealed to the superior court, which reversed his dismissal.
This Court affirmed the superior court's reversal of plaintiff's
dismissal, but the Supreme Court reversed this Court's decision
and upheld plaintiff's dismissal. In re Dismissal of Huang, 336
N.C. 67, 441 S.E.2d 696 (1994).
Prior to exhausting his administrative remedies, plaintiff
filed a complaint in superior court against defendant University
and defendant Poulton for breach of contract and intentional
infliction of emotional distress. The trial court granted
summary judgment for defendants on the emotional distress claim
and for plaintiff on the contract claim. Defendants appealed to
this Court, which reversed the trial court's summary judgment for
plaintiff on the ground that he had an adequate remedy for breach
of contract in the administrative appeal of his discharge. Huang
v. N.C. State University, 107 N.C. App. 710, 421 S.E.2d 812
(1992).
On 21 June 1991, plaintiff filed a complaint in the United
States District Court for the Eastern District of North Carolina
against defendants Thomas J. Ziko, Becky R. French, Poulton,Board, and University. In the complaint, he alleged federal
claims of civil rights violations, Title VII violations, free
speech violations, and age discrimination. He alleged state
claims of due process and equal protection. Defendants filed a
motion for summary judgment.
On 11 January 1993, the United States District Court granted
defendants' motion for summary judgment with respect to all
federal claims. As to plaintiff's state claims, the court ruled
as follows:
Because all the federal claims have been
dismissed against defendants in this action,
the court dismisses without prejudice the
remaining pendent state claims plaintiff has
asserted under the North Carolina
Constitution. In view of this, the court is
divested of jurisdiction to entertain these
claims, and plaintiff is left to pursue these
matters in state court.
Plaintiff appealed to the United States Court of Appeals for
the Fourth Circuit. On 7 December 1995, the Court of Appeals
affirmed the lower court's decision in an unpublished per curiam
opinion. Huang v. French, 73 F.3d 357 (4th Cir. 1995). On 22
April 1996, the United States Supreme Court denied plaintiff's
petition for a writ of certiorari. Huang v. French, 517 U.S.
1157, 134 L. Ed. 2d 649 (1996).
On 22 May 1996, plaintiff filed a complaint in the superior
court seeking compensatory and punitive damages from defendantsfor breach of contract, due process violations, malicious
prosecution, intentional infliction of emotional distress, civil
conspiracy, and constructive fraud. Defendants subsequently
filed an answer that included a motion to dismiss and alternative
motion for summary judgment. Defendants asserted as an
affirmative defense that each of plaintiff's claims was barred by
a three-year statute of limitations.
On 16 February 1998, the trial court granted defendants'
motion for summary judgment. The trial court ruled that “[t]he
statute of limitations bars each and every one of the Plaintiff's
claims.” Plaintiff appeals.
Plaintiff argues that the trial court erred by granting
defendants' motion for summary judgment. He contends that the
statute of limitations had not run at the time he filed his
complaint. We disagree.
The parties agree that each of plaintiff's claims was
subject to a three-year statute of limitations. Assuming
arguendo that plaintiff's claims accrued when defendant Board
affirmed his dismissal on 9 February 1990, plaintiff ordinarily
would have had until 9 February 1993 to file his complaint in
state court. Because plaintiff did not file his complaint in
state court until 22 May 1996, his claims were time-barred,
unless the statute of limitations was tolled. As the parties recognize, “filing an action in federal court
which is based on state substantive law . . . toll[s] the statute
of limitations while that action is pending.” Clark v. Velsicol
Chemical Corp., 110 N.C. App. 803, 808, 431 S.E.2d 227, 229
(1993), aff'd per curiam, 336 N.C. 599, 444 S.E.2d 223 (1994).
The parties agree that plaintiff's federal action was no longer
pending for the purpose of tolling the statute of limitations
when the United States Court of Appeals reached its decision on 7
December 1995. See Clark, 110 N.C. App. 803, 431 S.E.2d 227
(holding that because a petition for writ of certiorari to the
United States Supreme Court is not an appeal of right, the
federal action is not alive for the purpose of tolling the
statute of limitations while a decision to allow or deny such a
petition is pending). However, the parties disagree as to
whether plaintiff had additional time to file his complaint in
state court after the United States Court of Appeals reached its
decision.
Plaintiff contends that once the federal action was no
longer pending, the time for filing his complaint in state court
should have been extended for the portion of the three-year
limitations period that had not been used when he filed the
federal action. Since less than a year and a half had passed
when plaintiff filed his federal action, he would have had morethan a year and a half after 7 December 1995 to file his
complaint in state court.
Plaintiff's contention is untenable. The rule which
plaintiff would have this Court adopt is contrary to the policy
in favor of prompt prosecution of legal claims. Furthermore,
such a rule is contrary to the general rule that “[i]n the
absence of statute, a party cannot deduct from the period of the
statute of limitations applicable to his case the time consumed
by the pendency of an action in which he sought to have the
matter adjudicated, but which was dismissed without prejudice as
to him[.]” 51 Am. Jur. 2d Limitation of Actions § 311 (1970).
In this case, no statute or rule provides for the exclusion of
the time during which the federal action was pending from the
limitations period.
We likewise find unpersuasive defendants' contention that
the statute of limitations was tolled only until the United
States Court of Appeals reached its decision and that plaintiff
had no additional time to file his complaint in state court. We
believe the question presented by this appeal is controlled by 28
U.S.C.A. § 1367 (1993). See Kolani v. Gluska, 75 Cal. Rptr. 2d
257 (1998); Roden v. Wright, 611 So. 2d 333 (Ala. 1992). That
federal statute provides that when a federal district court has
original jurisdiction over a civil action it may also exercise“pendent” or “supplemental jurisdiction over all other claims
that are so related to claims in the action within such original
jurisdiction that they form part of the same case or
controversy[.]” 28 U.S.C.A. § 1367(a). A federal district court
may decline to exercise supplemental jurisdiction over a claim if
it “has dismissed all claims over which it has original
jurisdiction[.]” 28 U.S.C.A. § 1367(c)(3). The statute further
provides that the period of limitations for any supplemental
claim “shall be tolled while the claim is pending and for a
period of 30 days after it is dismissed unless State law provides
for a longer tolling period.” 28 U.S.C.A. § 1367(d). Since the
claims now asserted by plaintiff were supplemental claims
dismissed by the United States District Court, he was entitled to
thirty additional days to file his complaint in state court after
the United States Court of Appeals reached its decision, unless
some state statute provided for a longer period of time.
Rule 41(b) of the North Carolina Rules of Civil Procedure
provides a savings provision for claims that have been
involuntarily dismissed:
If the court specifies that the dismissal of
an action commenced within the time
prescribed therefor, or any claim therein, is
without prejudice, it may also specify in its
order that a new action based on the same
claim may be commenced within one year or
less after such dismissal.
N.C. Gen. Stat. § 1A-1, Rule 41(b) (1990). Assuming arguendo
that Rule 41(b) could apply in this case, the United States
District Court did not specify in its order that a new action
based on the same claims could be commenced within one year after
the dismissal. See Bockweg v. Anderson, 328 N.C. 436, 402 S.E.2d
627 (1991). Therefore, the time for plaintiff to file his
complaint in state court was not extended for an additional year.
Because North Carolina has no applicable “grace period”
longer than the thirty-day period set out in 28 U.S.C.A. § 1367,
the statute of limitations was tolled while the federal action
was pending and for thirty days thereafter. Plaintiff could have
filed his complaint in state court at any time during the
pendency of the federal action and up to thirty days after the
United States Court of Appeals reached its decision on 7 December
1995. Plaintiff's complaint, filed on 22 May 1996, was not
timely filed, and the trial court did not err by allowing
defendants' motion for summary judgment.
The summary judgment entered by the trial court is affirmed.
Affirmed.
Judges GREENE and HUNTER concur.
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