One Year Later: Massachusetts’ COVID-19 Tolling Orders in Civil Cases
by Christian B.W. Stephens and Elizabeth S. Dillon
On March 17, 2020, the Massachusetts Supreme Judicial Court (the SJC) issued the first of several orders tolling civil statutes of limitations and other statutory deadlines due to the COVID-19 pandemic. While the SJC’s tolling orders laudably intended to essentially freeze the rights of all parties during the pandemic, the orders will challenge civil practitioners for years to come. One year later, few Massachusetts courts have yet substantively addressed the myriad issues arising from the SJC’s tolling orders. This article presents a non-exhaustive illustration of some of the issues that are likely to arise and, based on a review of judicial interpretations of tolling orders in Massachusetts and beyond, explores how courts may interpret the Massachusetts tolling orders when issues do arise.
Due to COVID-19, the SJC tolled all Massachusetts civil statutes of limitations effective March 18, 2020. See March 17, 2020 Order (“First Tolling Order”). The SJC further ordered “all [other] deadlines set forth in statutes” tolled effective March 17, 2020 “[u]nless otherwise ordered by the applicable court.” Id. Citing “public health concerns regarding the COVID-19 (coronavirus) pandemic,” the SJC issued this tolling order “pursuant to its superintendence authority,” an apparent reference to Mass. Gen. Laws c. 211, § 3 (statute reflecting the SJC’s “general superintendence” authority over all inferior courts). Thereafter, the SJC issued three subsequent orders further tolling civil statutes of limitations and other statutory deadlines between March 17, 2020 and June 30, 2020, when the tolling period ended. See Orders dated April 1, 2020 (“Second Tolling Order”); May 4, 2020 (“Third Tolling Order”); and July 1, 2020 (“Fourth Tolling Order”) (collectively, the “Tolling Orders”). In total, the SJC tolled limitations periods and other statutory deadlines for 106 days in 2020.
Challenges for Practitioners
The Tolling Orders necessitate careful calculation of limitations periods and other statutory deadlines in disputes governed by Massachusetts law. Practitioners and parties must now generally add to an applicable limitations period another 106 days due to the Tolling Orders, an issue which alone is likely to result in problems and disputes concerning whether claims are time-barred. Causes of action which accrued between March 17, 2020 and June 30, 2020 (and thus may be subject to tolling, but for a period less than 106 days) will necessitate particularly careful review. An incorrect calculation may extinguish the rights of parties. An Ohio federal court, for example, has held that the failure to correctly calculate extended deadlines due to COVID-19 tolling orders did not constitute “excusable neglect” because attorneys are “presumed to know the… local rules and requirements of practice… especially when filing deadlines are involved.” In re Somogye, 2020 WL 4810805, *14-15 (N.D. Ohio July 28, 2020). Massachusetts courts would likely reach a similar result. See Goldstein v. Barron, 382 Mass. 181, 186 (1980) (“A flat mistake of counsel about the meaning of a statute or rule may not justify relief: relief is not extended to cover any kind of garden-variety oversight” including “[t]he misapprehension of … counsel resulting in a delayed filing”)(internal quotations omitted). Accord Pasquale v. Finch, 418 F.2d 627, 629-630 (1st Cir. 1969) (excusable neglect does not “cover any kind of garden-variety oversight.”).
Where the statutes of limitation are longer—for example, claims involving consumer protection under Chapter 93A (4 years), contracts (generally 6 years), or obsolete mortgages (35 years in some cases)—the Tolling Orders will have a long-lasting effect, even where no other tolling (e.g., contractual or equitable) applies. And, suits brought in foreign courts but governed by Massachusetts law—e.g., contract disputes with Massachusetts choice-of-law provisions—may cause difficulty for tribunals lacking familiarity with the Tolling Orders. Plaintiffs may shop for a Massachusetts forum to revive otherwise time-barred claims whereas defendants may seek to transfer claims brought in Massachusetts to other jurisdictions or challenge a Massachusetts choice of law to avoid the application of the Tolling Orders and possibly to bar claims altogether.
Federal courts may apply the Tolling Orders to Massachusetts, but not federal, claims. Federal and state claims predicated on the same alleged wrongful conduct (e.g., Title VII and M.G.L. c. 151B) may have different statutes of limitations due to the Tolling Orders. See Willard v. Indus. Air, Inc., 2021 WL 309116, *3 (M.D.N.C. Jan. 29, 2021) (limitations period to file Title VII claim governed by federal law and not extended by state tolling order). And, it is unclear whether a federal court will adopt the Tolling Orders where Congress failed to set a statute of limitations (e.g., § 1983 claims). See Loc. 802, Associated Musicians of Greater New York v. Parker Meridien Hotel, 145 F.3d 85, 88 (2d Cir. 1998) (“Because Congress did not provide a statute of limitations for suits brought under [Section] 301 [of the Labor Management Relations Act], this Court determines the statute of limitations for the federal cause of action by looking to the most appropriate state statute of limitations.”).
The Tolling Orders will also likely result in prolonged exposure for defendants. Although the statute of limitation under the FLSA is either two or three years for willful conduct (with each pay period a separate violation) (29 U.S.C. § 255(a)) and three years under the Massachusetts Wage Act (M.G.L. c. 149, § 150), the Tolling Orders may cause up to 106 days of increased liability for improper payment of wages during the COVID-19 pandemic. Because wage claims are often class actions, the potential liability may be significant, and the deadline for class members to opt-in may also be equitably tolled due to COVID-19. See Baxter v. Burns & McDonnell Eng’g Co., 2020 WL 4286828, *3 (D. Md. July 27, 2020) (although not considering any tolling order, equitably tolling deadline to opt-into class action based on COVID-19).
It is unclear whether the Tolling Orders extend statutes of limitation contractually shortened by the parties, Zamma Canada Ltd. v. Zamma Corp., 2020 WL 7083940, *7 (E.D. Va. Dec. 3, 2020) (although parties contracted for shortened statute of limitations, COVID-19 tolling orders extended limitations period), or non-statutory deadlines. Compare Cantu v. Trevino, 2020 WL 6073267, *5 (Tex. Ct. App. Sept. 24, 2020) (COVID-19 tolling orders did not extend non-statutory deadlines such as time to perfect appeal in civil case) with Haddad v. Tri-County A/C & Heating, 2020 WL 7753988, *3 (Tex. Ct. App. Dec. 30, 2020) (COVID-19 tolling orders likely automatically extended deadline to perfect appeal).
Problematically, the SJC’s orders tolling “all deadlines set forth in statutes” will likely not toll all statutory deadlines. For example, Massachusetts statutes of repose impose an absolute time bar and may not be tolled for any reason. See Stearns v. Metro. Life Ins. Co., 481 Mass. 529, 533 (2019). Statutes of repose exist in a variety of contexts, including construction, professional liability, and product liability matters. The Tolling Orders likely do not extend repose periods. Indeed, in a decision issued after the Tolling Orders, the SJC reaffirmed that statutes of repose are not subject to any tolling and did not reference the Tolling Orders. See D’Allessandro v. Lennar Hingham Holdings, LLC, 486 Mass. 150, 157 (Nov. 3, 2020) (each phase of a condominium project constitutes a separate “improvement” under M.G.L. c. 260, § 2B).
Enterprising (and well-funded) counsel may also attempt to directly challenge the Tolling Orders, particularly where high-exposure claims like class actions may be otherwise time-barred. For example, to the extent that the Tolling Orders arise from the SJC’s superintendence authority as codified in M.G.L. c. 211, § 3, that statute expressly precludes the SJC from acting to “supersede any general or special law” except in a “case or controversy” before it—a circumstance not present when the SJC issued the Tolling Orders. Arguably, an effort by the SJC to override legislation setting applicable limitations or repose periods outside of an actual case or controversy may be susceptible to separation of powers or other challenges. See, e.g., Committee for Public Counsel Servs. v. Chief Justice of Trial Court, 484 Mass. 431, 450 (2020) (limiting SJC’s superintendence power under c. 211, § 3, holding parole board retains discretion to revise custodial sentences notwithstanding COVID-19 Tolling Orders). Ultimately, the authority to issue the Tolling Orders may derive solely from the SJC’s constitutional or inherent superintendence powers, the contours of which are not entirely apparent. See In re DeSaulnier, 360 Mass. 757, 759 (1971) (referencing “the inherent common law and constitutional powers of this court, as the highest constitutional court of the Commonwealth, to protect and preserve the integrity of the judicial system and to supervise the administration of justice” as separate and distinct from “the supervisory powers confirmed to this court by G.L. c. 211, s[ection] 3”). See also Commonwealth v. Lougee, 485 Mass. 70, 85 (2020) (Lenk, J., concurring) (“[W]e should acknowledge with some humility that our [tolling] orders [issued under the SJC’s superintendence powers] were not as clear as they might have been” in that they did not expressly reference delays caused by COVID from statutory time limits on pretrial detention). While unlikely the SJC would deem its own orders legally infirm, another state or federal court presented with the issue could—further confusing the issue going forward—or may decide to refer or certify the issue as a result of the uncertainty.
The Massachusetts Legislature may codify the Tolling Orders to provide certainty for civil litigants in the Commonwealth. While such retroactive legislation could itself be susceptible to challenge, presumably Massachusetts courts could uphold appropriately-drafted legislation in light of the SJC’s issuance of the Tolling Orders and the extraordinary circumstances presented by COVID-19. See Embry v. President & Fellows of Harvard College, 32 Mass.L.Rptr. 430, *4 (Mass. Super. Ct. Dec. 10, 2014) (retroactively applying statute of limitations in child sexual abuse cases; enactment of extended statute of limitations constituted “extraordinary circumstance” warranting relief). Massachusetts courts may also extend statutes of limitation on a case-by-case basis under the doctrine of equitable tolling, although such relief is rare. See, e.g., Halstrom v. Dube, 481 Mass. 480, 485 (2019) (“Equitable tolling is to be used sparingly, and the circumstances where tolling is available are exceedingly rare”)(quotation omitted).
While the Tolling Orders are laudable, they present long-lasting challenges for practitioners. While these issues are starting to emerge, only further time will tell how Massachusetts (and other) courts will resolve the numerous issues raised by the Tolling Orders.
Chris Stephens is a Member in the Commercial Litigation Group at Eckert Seamans Cherin & Mellott, LLC. His practice encompasses a wide variety of litigation disputes including business litigation, financial services, administrative, and appellate matters.
Elizabeth Dillon is an associate attorney in the Boston Office of Eckert Seamans Cherin & Mellott, LLC. Elizabeth focuses her practice on commercial litigation matters, specifically in the areas of construction and employment litigation.