Ceriani v. Dionysus, inc., No. 4:2021cv00108 - Document 25 (E.D. Va. 2022)
Court Description: OPINION AND ORDER denying 11 Motion to Dismiss for Failure to State a Claim. Signed by Magistrate Judge Lawrence R. Leonard on 4/20/2022. (dbra, )
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Ceriani v. Dionysus, inc. Doc. 25 Case 4:21-cv-00108-LRL Document 25 Filed 04/20/22 Page 1 of 11 PageID# 112 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Newport News Division STACY CERIANI, Plaintiff, Case No.: 4:2Icvl08 V. ') DIONYSUS,INC. d/b/a DENNY'S, Defendant. OPINION AND ORDER Before the Court is Defendant Dionysis, Inc.'s ("Defendant") Motion to Dismiss for Failure to State a Claim and accompanying memorandum. ECF Nos. 11-12. Plaintiff Stacy Ceriani ("Plaintiff)filed a brief in opposition, ECF No. 14, and Defendant filed a reply, ECF No. 15. Having reviewed the briefing and the relevant authority, the undersigned has determined that a hearing is not necessary for adjudication ofthis motion in accordance with Federal Rule of Civil Procedure 78(b) and Eastern District of Virginia Local Civil Rule 7(J). Accordingly, the motion is ripe for decision. For the reasons set forth below. Defendant s Motion to Dismiss, ECF No. 11, is DENIED. I. FACTUAL AND PROCEDURAL BACKGROUND This case comes before the Court under its diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1), as it arose from a slip and fall at a Denny's restaurant in Williamsburg, Virginia, located within the Eastern District of Virginia. See ECF No. 1, 1-2. Accordingly, Virginia law controls the substantive legal issues. Alevromagiros v. Hechinger Co.,993 F.2d 417,420(4th Cir. 1993)("Because the situs of the accident was Virginia, the law of that state will apply in this diversity action."). Dockets.Justia.com Case 4:21-cv-00108-LRL Document 25 Filed 04/20/22 Page 2 of 11 PageID# 113 Plaintiff filed the instant Complaint on August 27,2021,alleging injuries from the slip and fall, which occurred on July 5, 2019. The statute of limitations for a personal injury action in Virginia is two years. Va. Code. § 8.01-243(A). Although Plaintiffs statute of limitations ordinarily would have expired on July 5, 2021, Plaintiffs Complaint alleges that a series of emergency orders (the "Emergency Orders") that the Chief Justice of the Supreme Court of Virginia issued in response to the COVID-19 pandemic tolled her statute of limitations and allowed her additional time to file her claim. ECF No. 1, 3-4. Defendant filed a motion to dismiss arguing that the provisions in the Emergency Orders tolling statutes of limitation do not apply to Plaintiffs claim because the expiration of her statute of limitations did not fall within the period covered by the Emergency Orders, and accordingly, her claim is time-barred. See ECF No. 12 at 2-6. Plaintiffs opposition disputes Defendant's assertion, and argues that her claim is timely pursuant to the Emergency Orders. ECF No. 14 at 2-3. Thus, the only question before the Court on this motion to dismiss is whether the Emergency Orders operated to toll Plaintiffs statute of limitations, making Plaintiffs Complaint timely. II. STANDARD OF REVIEW A motion filed under Rule 12(b)(6) of the Federal Rules of Civil Procedure challenges the legal sufficiency of a complaint. Jordan v. Alternative Resources Corp., 458 F.3d 332, 338 (4th Cir. 2006). While considering this motion, the court must assume that the facts alleged are true and view them in the light most favorable to the plaintiff. Eastern Shore Mkls., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000); Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). "A court may dismiss on the grounds of a statute of limitations defense if the necessary facts 'clearly appear on the face of the complaint.'" Stewart r'. Univ. ofN.C. Sys., 673 F. App'x 269, 271 (4th Cir. 2016)(citing Waugh Chapel S., LLC v. United Food & Commercial Case 4:21-cv-00108-LRL Document 25 Filed 04/20/22 Page 3 of 11 PageID# 114 Workers Union Local 27, 728 F.3d 354, 360(4th Cir. 2013)). III. THE SUPREME COURT OF VIRGINIA'S JUDICIAL EMERGENCY ORDERS Between March 16,2020,and July 8,2020,the Supreme Court of Virginia issued a number of orders declaring and extending a judicial emergency in response to the COVID-19 pandemic (the "Emergency Orders"). The first order declaring a judicial emergency, issued on March 16, 2020,declared that "all deadlines are hereby tolled and extended ...for a period of(21)days. In Re: Order Declaring a Judicial Emergency in Response to COVlD-19 Emergency, Mar. 16, 2020, https://www.vacourts.gOv/news/items/covid/2020_0317_supreme_court_of_virgi nia.pdf(the "First Order Declaring a Judicial Emergency"). As a result of the ongoing nature of the COVID-19 pandemic, the Supreme Court ot Virginia continued to issue additional orders that extended the declaration of emergency, and the tolling ofstatutes oflimitations. The second order extending the declaration ofjudicial emergency, issued on March 27, 2020,explained that "[wjith the exception of matters enumerated herein, all applicable deadlines, time schedules and filing requirements, including any applicable statute of limitations which would othenvise run during the period this order is in effect, are hereby tolled and extended...for the duration of this Order." In Re: Order Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency Declaring a Judicial Emergency in Response to COVID-19 Emergency, Mar. 27, 2020, https://www.vacourts.gOv/news/items/2020_0327_scv_order_extending_declaration_of_judicial _emergency.pdf(the "Second Order Extending the Judicial Emergency")(emphasis added). The third order extending the declaration ofjudicial emergency, issued on April 22, 2020, again repeated that "[a]s recognized in the First and Second Orders, in district and circuit courts the statutes of limitation and case related deadlines are tolled during the Period ot Judicial Case 4:21-cv-00108-LRL Document 25 Filed 04/20/22 Page 4 of 11 PageID# 115 Emergency." In Re: Third Order Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency Declaring a Judicial Emergency in Response to COVID-19 Emergency, April 22,2020,https://www.vacourts.gov/news/items/covid/2020_0422_scv_order_extending_de claration_ofJudicial_emergency.pdf(the "Third Order Extending the Judicial Emergency"). The Third Order Extending the Judicial Emergency went on to define tolling as "[t]o suspend or stop temporarily." On July 8, 2020, the Supreme Court of Virginia issued its seventh order extending declaration ofjudicial emergency in response to the COVID-19 emergency. In Re: Seventh Order Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency Declaring a Judicial Emergency in Response to COVID-19 Emergency, Jul. 8, 2020, https://www.vacourts.gOv/news/items/covid/2020_0708_scv_seventh_order.pdf (the "Seventh Order Extending the Judicial Emergency"). In the Seventh Order Extending the Judicial Emergency,the Supreme Court of Virginia ended the tolling ofstatutes of limitations, stating that: beginning on July 20, 2020, for cases in the district and circuit courts, there shall be no further tolling of statutes of limitations or other case-related deadlines. The tolling period as a result of the Judicial Emergency for such statutes of limitation and deadlines shall be limited to March 16, 2020 through July 19, 2020. This period of tolling shall not be counted for purposes of determining statutes of limitation or other case-related deadlines. If, for example, the circuit court entered final judgment on March 10, 2020, six days before the Judicial Emergency was declared, then the total number of days of the tolling period resulting from the Judicial Emergency shall not count toward the 90-day deadline for filing the petition for appeal under Rule 5:17(a)(l), and this deadline would be extended for a period of84 days after the tolling period ends on July 20,2020. Id. (emphasis added). IV. ANALYSIS 1. The Emergencv Orders are an Integral Part of Virginia's Statute ot Limitations. At the outset, the Court notes that it must apply Virginia law governing statutes of Case 4:21-cv-00108-LRL Document 25 Filed 04/20/22 Page 5 of 11 PageID# 116 limitations. Adams v. Am. Optical Corp., 979 F.3d 248, 255 (4th Cir. 2020)(noting that while sitting in diversity, the federal court interprets and applies the substantive law including statutes oflimitations). In doing so,the Court must also apply "Virginia rules and laws that are"an integral part of the state statute of limitations." Zamma Canada Ltd. v. Zamma Corp., No. 3:20CV353HEH,2020 WL 7083940, at *5(E.D. Va. Dec. 3,2020)(citing Walker v. Armco Steel Corp.,446 U.S. 740,746(1980)). Here,the Supreme Court of Virginia's Emergency Orders tolling deadlines, including statutes of limitation in response to COVID-19, are "integral to any Virginia court's analysis of a statute of limitations issue." Id. at *6. Accordingly, the Emergency Orders are applicable to the Court's analysis in this case. 2. The Emercencv Orders Excluded the Tolling Period from Plaintiffs Statute ot Limitations. The sole question before the Court is whether the Emergency Orders operated to extend the statute of limitations and provide Plaintiff with additional time to file her claim. Defendant argues that the Emergency Order tolling statutes of limitations are only applicable to statutes of limitations or deadlines which would have expired during the 126-day tolling period between March 16, 2020, and July 19, 2020. ECF No. 12 at 2-6. Because the statute of limitations for Plaintiffs claim expired on July 5,2021, Defendant contends that it did not fall within the tolling period and thus Plaintiff was not entitled to additional time to file her claim. Id. In support of its argument. Defendant relies on the language in the Seventh Order Extending the Judicial Emergency stating that "there shall be no further tolling of statutes of limitations' and "the tolling period as a result of the Judicial Emergency for such statutes of limitation and deadlines shall be limited to March 16, 2020 through July 19, 2020." Id. at 2-3. Plaintiff, also relying on the language in the Seventh Order Extending the Judicial Emergency, argues that the language "[t]his period of tolling shall not be counted for purposes of determining statutes of limitation or other Case 4:21-cv-00108-LRL Document 25 Filed 04/20/22 Page 6 of 11 PageID# 117 case-related deadlines" is operative, and that this period of time should not be counted for determining a statute of limitations. ECF No. 14 at 2-3. Despite Defendant's contention, the Court of Appeals of Virginia has not considered the issue of whether the Emergency Orders operate to toll a statute of limitations that expired outside the 126-day tolling period. See ECF No. 12 at 4-5 (citing Petersen v. Robertson, No. 1026-20-2, 2021 WL 2793780, at *3 (Va. Ct. App. July 6, 2021) and Whitmer v. Spotsylvania Cty. Dep'l of Soc. Sei-vs.,^0. 0882-20-2, 2021 WL 1179421, at *4(Va. Ct. App. Mar. 30, 2021)). In Peterson, the Court of Appeals of Virginia found that the Emergency Orders applied to a deadline that expired on April 1, 2020 (clearly subject to the Emergency Orders), and ruled that the plaintiffs filing on July 17,2020 was timely because the deadline was tolled. 2021 WL 1179421, at *4. In Whitmer, an order terminating parental rights was entered on June 29, 2020(clearly subject to the Emergency Orders), and the Court of Appeals of Virginia found that the tolling provision applied, and the 60-day deadline to file a transcript recommenced on July 20,2020. 2021 WL 1179421, at *4. Neither case considered how the Emergency Orders affected a statute of limitations that was running during the tolling period, but was set to expire after the tolling period ended.' Only a small number of cases have considered whether the Emergency Orders operate to exclude the entire tolling period from any statute of limitations or deadline that was running during the tolling period but did not expire therein. In line with Defendant's interpretation of the Emergency Orders, a number of courts have held that in order for the tolling provision in the Emergency Orders to apply, the statute of limitations or deadline must have been set to expire 'Other cases that Defendant cites in support of its motion are also inapposite as they consider statutes of limitations or deadlines that would have expired within the tolling period. ECF No. 12 at 3-5 (citing Haysbert v. Bloomin' Brands, Inc., No. 4:20-CV-121, 2021 WL 5003283, at *3 (E.D. Va. Apr. 7, 2021); Zamma Canada Ltd., 2020 WL 7083940, at *7-8(E.D. Va. Dec. 3, 2020); Algabi v. Dagvadorj, 106 Va. Cir. 153 (2020)). Case 4:21-cv-00108-LRL Document 25 Filed 04/20/22 Page 7 of 11 PageID# 118 within the tolling period between March 16, 2020 and July 19, 2020. Proctor v. AECOM, Inc., No. 121CV00033RDAJFA, 2021 WL 3809041, at *4 (E.D. Va. Aug. 26, 2021)(finding the plaintiffs August 7, 2020 service of process deadline was not within the tolling period in the Emergency Orders and accordingly, her service of process completed on December 14,2020, was insufficient); Eng. v. Quinn, No. CL20-2857, 2022 WL 363981, at *3(Va. Cir. Ct. Feb. 7, 2022) (holding that the Emergency Orders only tolled statute of limitations which were set to expire during the tolling period and therefore the plaintiffs complaint was not timely); Tinsley v. Clarke, No.7:21CV270,2022 WL 909354,at *6(W.D. Va. Mar. 28,2022)(noting that the Supreme Court of Virginia did not afford a state habeas petition any period of tolling where the statute ol limitations expired on September 7, 2020). However, in line with Plaintiffs interpretation of the Emergency Orders, other courts have held that if a statute of limitations or deadline was running during the Emergency Orders, the tolling provision stopped the running of the clock and allowed parties additional time to file their claim even ifthe statute oflimitation or deadline expired outside the tolling period. Heck v. Guion, 108 Va. Cir. 179, 182 (Va. Cir. Ct. June 4, 2021)(finding deadline was tolled from March 16, 2020 through July 19, 2020 and recommenced on July 20, 2020); Lutz v. Clarke, No. 7:21-CV-00272, 2022 WL 891958, at *1 (W.D. Va. Mar. 25, 2022) (finding state habeas petition filed on May 10,2021, was timely due to the Emergency Orders even though the statute of limitations would have ordinarily began on April 30, 2020 and expired on April 30,2021). Upon this Court's review of the Emergency Orders, the Court agrees with Plaintiff and finds that the Emergency Orders do operate to toll Plaintiffs statute of limitations. The language used in the Emergency Orders suggests to the Court that the Supreme Court of Virginia excluded the tolling period from any statute of limitations calculation, regardless of whether it expired Case 4:21-cv-00108-LRL Document 25 Filed 04/20/22 Page 8 of 11 PageID# 119 during the tolling period. Notably, although the Supreme Court of Virginia provided several examples of the tolling period, none of the Emergency Orders provided an example where the statute of limitations expired outside the tolling period. In looking at the Emergency Orders, the Second Order Extending the Judicial Emergency specifically limited the tolling period to include "any applicable statute oflimitations which would otherwise run during the period this order is in effect." However, by the Third Order Extending the Judicial Emergency, the Supreme Court of Virginia did not state the same limitation, and simply stated that "[a]s recognized in the First and Second Orders, in district and circuit courts, the statutes of limitation and case related deadlines are tolled during the period of Judicial Emergency." Importantly, the Third Order Extending the Judicial Emergency also clarified its interpretation of the word "toll"—utilizing Black's Law Dictionary to define the word "'toll' as '[t]o suspend or stop temporarily.'" By the Seventh Order Extending the Judicial Emergency, the Supreme Court of Virginia stated, "there shall be nofurther tolling of statutes of limitations or other case-related deadlines." If"toll" means to stop, then by the language of the previous orders, the statute of limitations would have been stopped, and would not be stopped any 'further." The Seventh Order also stated that the tolling period, between "March 16, 2020 through July 19, 2020 ...shall not be countedfor purposes of determining statutes of limitation or other case related deadlines." It did not include language as in the Second Order Extending the Judicial Emergency, limiting that period to only those statutes of limitation that expired during the tolling period. Accordingly, by the time of the Seventh Order Extending the Judicial Emergency, Plaintiffs statute of limitations had already been tolled (i.e., stopped), and that period of time is not counted for purposes of determining statutes of limitations. Case 4:21-cv-00108-LRL Document 25 Filed 04/20/22 Page 9 of 11 PageID# 120 3. Plaintiff Would Be Entitled to Equitable Tolling Even if the Emergency Orders Did Not Exclude the Tolling Period from Plaintiffs Statute of Limitations. Even if the Emergency Orders did not operate exclude the tolling period from Plaintiffs statute oflimitations calculation, the Court finds that she would nonetheless be entitled to equitable tolling. Equitable tolling may apply when "[']due to circumstances external to the party's own conduct — it would be unconscionable to enforce the limitation period against the party and gross injustice would result.'" Battle i'. Ledford, 912 F.3d 708, 718 (4th Cir. 2019)(quoting Raplee r'. United States, 842 F.3d 328, 333(4th Cir. 2016)). "Generally, a litigant seeking equitable tolling bears the burden of establishing two elements:(1) that he has been pursuing his rights diligently, and(2)that some extraordinary circumstance stood in his way." Id.(quoting Pace v. DlGuglielmo, 544 U.S. 408,418(2005)). A litigant must establish "reasonable diligence, not maximum feasible diligence." Holland v. Florida, 560 U.S. 631,653 (2010). While generally speaking a lawyer s miscalculation of a limitations period is not a valid basis to justify equitable tolling, a miscalculation may constitute extenuating circumstances where there is a lack ofclarity in a statute that contributes to a misunderstanding ofa limitations period. See Harris v. Hutchinson, 209 F.3d 325,331 (4th Cir. 2000). Here,the Court finds that even if the Supreme Court of Virginia's Emergency Orders only operated to toll statutes of limitations which expired within the tolling period, because of the way those orders are worded Plaintiffs belief that the Emergency Orders applied to toll statutes of limitations which expired after the tolling period was reasonable. Consequently, the language of the Emergency Orders stood in the way of Plaintiffs timely filing. As explained above, the Seventh Order Extending the Judicial Emergency explicitly stated that the tolling period, between "March 16, 2020 through July 19, 2020...shall not be counted for purposes of determining Case 4:21-cv-00108-LRL Document 25 Filed 04/20/22 Page 10 of 11 PageID# 121 statutes oflimitation or other case related deadlines."^ Additionally, before Plaintiffs statute of limitations expired, few courts addressed the impact ofthe Emergency Orders on cases where the statute of limitations expired outside the tolling period. As explained above, a majority of the cases instead dealt with statutes of limitations or other deadlines that expired within the tolling period—clearly covered by the Emergency Orders. The few opinions that did address the exact issue in this case but interpreted the Emergency Orders in the same way as Defendant were issued after July 5, 2021—the date Defendant contends the statute of limitations should have expired. See Proctorv. AECOM,/w.,No. 121CV00033RDAJFA,2021 WL 3809041,at *4(E.D. Va. Aug. 26, 2021)(issued the day before Plaintiff filed her Complaint); Eng. v. Quinn, No. CL20-2857, 2022 WL 363981, at *3(Va. Cir. Ct. Feb. 7,2022); Tinsley v. Clarke, No. 7:21CV270, 2022 WL 909354, at *6(W.D. Va. Mar. 28, 2022). Accordingly, the language of the Emergency Orders, and Plaintiffs reasonable belief that they operated to exclude the tolling period from her statute of limitations calculations, constitutes an extraordinary circumstance that stood in the way ofPlaintiff filing her Complaint on or before July 5,2021. Plaintiff has also demonstrated that she was pursuing her rights diligently. As noted, without any period oftolling. Plaintiffs deadline to file her Complaint was July 5,2021. However, considering Plaintiffs reasonable belief that the tolling period was excluded from her statute of limitations, her statute of limitations would have expired on November 8, 2021—126 days, the length of the tolling period—after July 5, 2021. Plaintiff filed her Complaint in this Court on - Notably, on November 15, 2021, the ABA issued an article characterizing Virginia as a state with Emergency Orders that take a "broad approach to tolling" in that the Emergency Orders "more broadly tolled all statutes of limitation for [the period ofJudicial emergency]" as opposed to only those "that were set to expire within [a] particular 'emergency' periodQ." Paula M. Bagger, The Impact of COVID Emergency Orders on the Tolling ofCivil Statutes ofLimitations, The American Bar Association(Nov. 15, 2021), https://www.americanbar.org/groups/litigation/committees/commercialbusiness/practice/2021/imp act-of-coV id-emergency-orders-statute-of-1i m itations/. 10 Case 4:21-cv-00108-LRL Document 25 Filed 04/20/22 Page 11 of 11 PageID# 122 August 27, 2021, well before what she reasonably believed was her deadline to file within the statute of limitations. Under these circumstances. Plaintiff was pursuing her rights diligently, and her reasonable belief that the statute of limitations for her claim was tolled during the period of tolling set forth in the Emergency Orders was an extraordinary circumstance that stood in the way of her filing her Complaint. Therefore, Plaintiff would be entitled to equitable tolling even if her Complaint was not timely filed. V. CONCLUSION For the reasons explained above. Defendant's Motion to Dismiss, ECF No. 11, is DENIED. The Clerk is DIRECTED to forward a copy of this Order to all counsel of record. It is so ORDERED. Lawrence R. Leonard United States Magistrate Judge Newport News, Virginia April 20,2022 11
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