Appeal from the Superior Court of the District of Columbia; (Hon. Curtis E. von Kann, Trial Judge)
Before Rogers, Chief Judge, Schwelb, Associate Judge, and Belson, Senior Judge. Concurring opinion by Chief Judge Rogers, with whom Associate Judge Schwelb joins.
The opinion of the court was delivered by: Per Curiam
PER CURIAM: The Superior Court of the District of Columbia dismissed appellant's suit against Aluminum Association and other defendants on the ground that the three-year statute of limitations governing such actions had expired pursuant to D.C. Code § 12-301 (3). Appellant Curtis concedes that the statute of limitations had run, but urges this court to apply the doctrine of "equitable tolling" and to hold that his earlier suit filed in the United States District Court for the District of Columbia, which asserted the same cause of action but had been dismissed by that court for lack of subject matter jurisdiction, tolled the statute of limitations for purposes of his Superior Court suit. We affirm.
Mr. Curtis, a member of the Bar who represents himself in this proceeding, seeks relief from alleged water damage to his property alleged to have occurred in February of 1987. He originally filed his action in the United States District Court for the District of Columbia on November 3, 1989. That action, although filed prior to the expiration of the three-year statute of limitations, failed to meet the subject matter jurisdictional requirement of "complete diversity" between all plaintiffs and all defendants. Accordingly, Mr. Curtis' District Court lawsuit was dismissed for lack of subject matter jurisdiction. He subsequently filed a lawsuit in the Superior Court on February 13, 1991, well after the expiration of the three-year statute of limitations.
Mr. Curtis, relying primarily on decisions of other courts, urges this court to hold that equitable tolling excuses him from the statute of limitations of the District of Columbia. We have held, however, that "there is no basis for finding that filing suit in another jurisdiction tolls the statute of limitations here . . . ." Namerdy v. Generalcar, 217 A.2d 109, 113 (D.C. 1966) see also Bond v. Serano, 566 A.2d 47 (D.C. 1989)
In Bond, plaintiff originally filed suit in the United States District Court for the District of Columbia, alleging diversity of citizenship. The District of Columbia, one of several defendants, successfully moved for dismissal of the suit as to it on the grounds for lack of diversity. Plaintiff subsequently filed an identical complaint against the District in the Superior Court of the District of Columbia. The statute of limitations, however, had expired by that time. Plaintiff argued on appeal that the original complaint filed in federal court tolled the statute of limitations with respect to the Superior Court action. This court upheld the trial court's decision not to apply the doctrine of equitable tolling.
We are unconvinced by appellant's efforts to distinguish the holding in Bond. There is no significant distinction between the circumstances upon which this court ruled in Bond, and the circumstances presented here. Thus, our holding in Bond binds this division.
ROGERS, Chief Judge, with whom Judge Schwelb joins, Concurring: Appellant stored personal property in the basement of appellees' building. *fn1 As the result of a snowstorm in February 1987, water pipes froze and burst in a floor above and flooded the basement, allegedly causing damage to appellant's property. At oral argument, appellant, a Virginia resident, stated that he filed his lawsuit in federal court after consultation with others because he was likely to receive a trial date in one year, in comparison with the District of Columbia courts where he was unlikely to receive a trial date for three years.
Appellant filed suit in federal court on November 3, 1989. In April 1990, the United States Supreme Court held in Carden v. Arkoma Assocs., 494 U.S. 185, 108 L. Ed. 2d 157 , 110 S. Ct. 1015 (1990), that citizenship of limited partners must be taken into account in determining diversity of citizenship among parties. A year later the federal suit was dismissed for lack of jurisdiction, because one of appellees' limited partners also was a Virginia resident; the Judge noted that the result was "harsh." In denying appellant's motion for reconsideration, the Judge also noted, however, that in its order of dismissal it had stated that Carden "'is not a new rule, but it is a restatement of the oft-repeated rule that diversity must exist between all members of a business entity.'" On February 13, 1991, two months before the dismissal of his federal lawsuit, appellant filed suit in the local trial court, anticipating, he claimed in his brief on appeal, the effect of Carden. Because the local suit was filed more than three years after his cause of action had accrued, the trial Judge dismissed appellant's complaint on March 18, 1991; he also denied a motion to reconsider.
I write separately for the purpose of suggesting again, see Bond v. Serano, 566 A.2d 47, 49 (D.C. 1989) ("two members of this division . . . believe that the issue may be worthy of en banc consideration"), that the en banc court should consider whether to adopt the doctrine of equitable tolling as an exception to the statutory limitations bar. Although the cases do not appear to arise often, in the last three years this court has twice been presented with a situation in which a good faith choice of forum by a plaintiff has resulted in the denial of a local forum in the absence of advancement of the purposes underlying statutes of limitation.
The source of our present rule is Namerdy v. Generalcar, 217 A.2d 109 (D.C. 1966), where a plaintiff who could not obtain jurisdiction of the defendant in the foreign courts sought to sue late (after the statute of limitations had run) in the local court to collect four installment payments due. In concluding that suit on collection of the first installment payment under the parties' agreement was barred by the statute of limitations, the court stated that
there is no basis for finding that filing suit in another jurisdiction tolls the statute of limitations here, and it has been forcibly held that the section of our Code, § 12-205 (as amended Supp. V, 1966, § 12-303), which tolls the statute of limitations while a party is out of the District or when a party absconds or conceals himself, is ...