Tolling (law)

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Tolling is a legal doctrine that allows for the pausing or delaying of the running of the period of time set forth by a statute of limitations, such that a lawsuit may potentially be filed even after the statute of limitations has run. Although grounds for tolling the statute of limitations vary by jurisdiction, common grounds include: [1] [2]


Tolling may occur under a statute that specifically provides for the tolling of the statute of limitations during specified circumstances. It may also take the form of equitable tolling, where the court applies common law principles of equity to extend the time for the filing of a document. [3]

Statutory tolling

When passing statutes of limitation, legislatures may pass laws that describe when the limitations period may be extended. [4] The effects of tolling can be curtailed by a statute of repose, a law that creates an absolute deadline for filing an action, irrespective of reasons for tolling the statute of limitations. [2] Many jurisdictions have particular peculiarities with regard to tolling. For example, in the Commonwealth of Virginia, where a party brings an action, and then declares a nonsuit, the statute of limitations is extended for six months.

Equitable tolling

Equitable tolling applies in criminal and civil proceedings, including in removal proceedings under the Immigration and Nationality Act (INA). [3] Equitable tolling is a common principle of law stating that a statute of limitations shall not bar a claim in cases where the plaintiff, despite use of due diligence, could not or did not discover the injury until after the expiration of the limitations period.

For example, when pursuing one of several legal remedies, the statute of limitations on the remedies not being pursued will be equitably tolled if the plaintiff can show:

It has been held that equitable tolling applies principally if the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his or her rights. Importantly, it has also been held that the equitable tolling doctrine does not require wrongful conduct on the part of the defendant, such as fraud or misrepresentation. [5]

England and Wales

The term tolling is unknown to English law. Part II of the Limitation Act 1980 may permit an extension or delay to commencement of a limitation period where a party operates under a defined disability, in personal injury cases, amongst others. Also, where relevant facts of a cause of action for fraud or mistake have been hidden from a claimant, the limitation period will commence on the date that the person could have with reasonable diligence discovered it.

United States

Federal courts

Historically, the federal judiciary of the United States had "allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." [6] The federal approach has been described as merging principles of equitable tolling and equitable estoppel. [7] Under standard application of those principles, equitable tolling does not require any misconduct by the defendant, while equitable estoppel requires wrongful conduct on the part of the defendant, such as fraud or misrepresentation. [8]

Before 2015, when the United States was a defendant, equitable tolling could not be applied against the United States since the Spending Clause has been interpreted by the Supreme Court to only vest Congress with the authority to waive sovereign immunity, and statutes of limitation are interpreted as a condition on the waiver of sovereign immunity that limit the jurisdiction of a court to hear cases against the United States. In April 2015, the Supreme Court ruled that equitable tolling applies against the United States, despite the Spending Clause. [9]

Non-federal courts

Some non-federal courts in the United States take different approaches to equitable tolling, with some courts accepting equitable tolling and others sharply limiting the practice or declining to toll the statute of limitations in the absence of statutory authority.


Arizona courts have recognized and applied the equitable tolling doctrine. [10] For example, the state's courts have allowed equitable tolling:

  • When a second wrongful death claim was not filed in a timely manner after a successful verdict on first claim that was overturned on appeal due to defective service of process. [11]
  • Where a plaintiff prisoner failed to timely file notice of claim against state because he first pursued claim through prison's administrative grievance procedure. [12]
  • When a right-to-sue letter from the Arizona Attorney General's office contained incorrect date by which plaintiff was required to sue on his claim. [13]

The Supreme Court of California has held that equitable tolling may occur in carefully considered situations, as necessary to prevent the unjust technical forfeiture of causes of action, where the defendant would suffer no prejudice. [14]


In the context of a case in which the defendants were subject to service by substituted service, Delaware's Supreme Court held that it would not equitably toll the statute of limitations due to the plaintiff's difficulty effecting personal service of a lawsuit upon the defendants. [15]


The Florida Supreme court observed, as an equitable remedy, the prejudice to the defendant must be considered before application of equitable tolling. [16] The court expressed that tolling doctrine is used in the interests of justice to accommodate both a defendant's right not to be called upon to defend a stale claim and a plaintiff's right to assert a meritorious claim when equitable circumstances have prevented a timely filing. The application of equitable tolling focuses on the plaintiff's excusable ignorance of the limitations period and on the lack of prejudice to the defendant. [17] Equitable tolling does not require active deception or employer misconduct, but focuses rather on whether the plaintiff acted with a reasonably prudent regard for his rights. [16]


Maryland does not permit the equitable tolling the statute of limitations, and tolls the limitations period only when the legislature has created an exception to its application. [18] Maryland's courts have held that the statute of limitations reflects a legislative judgment of what is deemed an adequate period of time in which a person of ordinary diligence” should bring his or her legal action. [19]


In Michigan, the plaintiff must exercise due diligence in order to invoke equitable tolling. Where information is reasonably available to the plaintiff such that the proper defendant may be identified and served, the plaintiff may not seek the tolling of the statute of limitations due to its failure to obtain the needed information in a timely manner. [20]


Mississippi courts require earnest efforts by plaintiffs seeking tolling, and will not equitably toll the statute of limitations based upon claims of excusable neglect, or based upon the plaintiff's own actions or omissions. [21]

New Mexico

The Supreme Court of New Mexico has held that equitable tolling normally applies in cases where a litigant was prevented from filing suit because of an extraordinary event beyond his or her control. [22] In contrast, where a plaintiff fails to identify a cause of action and file a lawsuit in a timely manner due to his or her own fault, equitable tolling does not apply. [23]

North Dakota

In North Dakota, a plaintiff's failure to timely serve the defendants does not warrant equitable tolling. [24]

Contract law

In certain professional sports leagues, such as in the National Hockey League, the tolling of a player's contract to allow for the pausing or delaying of the commencement of a contract can occur under certain conditions when a player signs his first NHL contract. This tolling is defined as an "entry-level slide", which can occur for a maximum of two seasons. This is demonstrated in Exhibit 16.4 of the current NHL collective bargaining agreement. [25]

In addition, a player's contract can be tolled if a player does not satisfy his end of the playing contract (i.e., refuses to report while his contract is in force).

Related Research Articles

Laches (equity) Unreasonable delay by a plaintiff in bringing their claim

In common law legal systems, laches is a lack of diligence and activity in making a legal claim, or moving forward with legal enforcement of a right, particularly in regard to equity. This means that it is an unreasonable delay that can be viewed as prejudicing the opposing party. When asserted in litigation, it is an equity defense, that is, a defense to a claim for an equitable remedy.

A statute of limitations, known in civil law systems as a prescriptive period, is a law passed by a legislative body to set the maximum time after an event within which legal proceedings may be initiated. In the United States, a government agency is permitted by the Congress to create under federal regulations its own statute of limitations.

An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's otherwise unlawful conduct. In civil lawsuits, affirmative defenses include the statute of limitations, the statute of frauds, waiver, and other affirmative defenses such as, in the United States, those listed in Rule 8 (c) of the Federal Rules of Civil Procedure. In criminal prosecutions, examples of affirmative defenses are self defense, insanity, entrapment and the statute of limitations.

A declaratory judgment, also called a declaration, is the legal determination of a court that resolves legal uncertainty for the litigants. It is a form of legally binding preventive by which a party involved in an actual or possible legal matter can ask a court to conclusively rule on and affirm the rights, duties, or obligations of one or more parties in a civil dispute. The declaratory judgment is generally considered a statutory remedy and not an equitable remedy in the United States, and is thus not subject to equitable requirements, though there are analogies that can be found in the remedies granted by courts of equity. A declaratory judgment does not by itself order any action by a party, or imply damages or an injunction, although it may be accompanied by one or more other remedies.

Nonintercourse Act Family of U.S. laws related to Native American tribal rights

The Nonintercourse Act is the collective name given to six statutes passed by the Congress in 1790, 1793, 1796, 1799, 1802, and 1834 to set Amerindian boundaries of reservations. The various Acts were also intended to regulate commerce between settlers and the natives. The most notable provisions of the Act regulate the inalienability of aboriginal title in the United States, a continuing source of litigation for almost 200 years. The prohibition on purchases of Indian lands without the approval of the federal government has its origins in the Royal Proclamation of 1763 and the Confederation Congress Proclamation of 1783.

A legal remedy, also referred to as judicial relief or a judicial remedy, is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes another court order to impose its will in order to compensate for the harm of a wrongful act inflicted upon an individual.

The Virginia General District Court (GDC) is the lowest level of the Virginia court system, and is the court that most Virginians have contact with. The jurisdiction of the GDC is generally limited to traffic cases and other misdemeanors, civil cases involving amounts of under $25,000. There are 32 GDC districts, each having at least one judge, and each having a clerk of the court and a courthouse with courtroom facilities.

Personal injury

Personal injury is a legal term for an injury to the body, mind or emotions, as opposed to an injury to property. In common-law jurisdictions the term is most commonly used to refer to a type of tort lawsuit in which the person bringing the suit has suffered harm to his or her body or mind. Personal injury lawsuits are filed against the person or entity that caused the harm through negligence, gross negligence, reckless conduct, or intentional misconduct, and in some cases on the basis of strict liability. Different jurisdictions describe the damages in different ways, but damages typically include the injured person's medical bills, pain and suffering, and diminished quality of life.

Removal jurisdiction

In the United States, removal jurisdiction allows a defendant to move a civil action filed in a state court to the United States district court in the federal judicial district in which the state court is located. A federal statute governs removal.

A statute of repose, like a statute of limitations, is a statute that cuts off certain legal rights if they are not acted on by a specified deadline.

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), was a United States Supreme Court case involving the Alien Tort Statute and the Federal Tort Claims Act.

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<i>Cayuga Indian Nation of New York v. Pataki</i> American legal case

Cayuga Indian Nation of New York v. Pataki, 413 F.3d 266, is an important precedent in the United States Court of Appeals for the Second Circuit for the litigation of aboriginal title in the United States. Applying the U.S. Supreme Court's recent ruling in City of Sherrill v. Oneida Indian Nation of New York (2005), a divided panel held that the equitable doctrine of laches bars all tribal land claims sounding in ejectment or trespass, for both tribal plaintiffs and the federal government as plaintiff-intervenor.

South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498 (1986), is an important U.S. Supreme Court precedent for aboriginal title in the United States decided in the wake of County of Oneida v. Oneida Indian Nation of New York State (1985). Distinguishing Oneida II, the Court held that federal policy did not preclude the application of a state statute of limitations to the land claim of a tribe that had been terminated, such as the Catawba tribe.

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Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014), is a United States Supreme Court copyright decision in which the Court held 6-3 that the equitable defense of laches is not available to copyright defendants in claims for damages.

Menominee Tribe of Wis. v. United States, 577 U.S. ___ (2016), was a case in which the Supreme Court of the United States clarified when litigants are entitled to equitable tolling of a statute of limitations. In a unanimous opinion written by Justice Samuel Alito, the Court held that the plaintiff in this case was not entitled to equitable tolling of the statute of limitations because they did not demonstrate that "extraordinary circumstances" prevented the timely filing of the lawsuit.

Rotkiske v. Klemm, 589 U.S. ___ (2019), was a decision by the Supreme Court of the United States involving the statute of limitations under the Fair Debt Collection Practices Act of 1977. The Court ruled that the statute of limitations begins one year after the alleged FDCPA violation took place, not one year after the violation was discovered by the plaintiff. This ruling affirmed a decision by the 3rd Circuit Court of Appeals. It is noteworthy for being the first signed opinion released from the 2019 term. It is also noteworthy for resolving a circuit split regarding a major consumer protection law.

<i>Arce v. García</i>

Arce v. García, 434 F.3d 1254, is a landmark Eleventh Circuit case brought by three Salvadoran plaintiffs under the Alien Tort Claims Act (ATCA) and the Torture Victim Protection Act (TVPA). These claims were brought under the doctrine of command responsibility against two high-ranking Salvadoran military personnel who ordered and carried out grave human rights abuses over the course of the country’s twelve year civil war.


  1. McGovern, Bruce A. (Fall 2000). "The New Provision for Tolling the Limitations Periods for Seeking Tax Refunds: Its History, Operation and Policy, and Suggestions for Reform". Missouri Law Review. 65 (4): 1–80. Retrieved 5 September 2017.
  2. 1 2 Larson, Aaron (4 August 2017). "Statute of Limitations by State for Civil Cases". ExpertLaw. Retrieved 5 September 2017.
  3. 1 2 See, e.g., Reyes Mata v. Lynch, 576 U.S. ___, ___, 135 S.Ct. 2150, 1254 (2015) ("Every other Circuit that reviews removal orders has affirmed its jurisdiction to decide an appeal, like Mata's, that seeks equitable tolling of the statutory time limit to file a motion to reopen a removal proceeding."); Bonilla v. Lynch, 840 F.3d 575, 582 (9th Cir. 2016) ("Failure to meet the filing deadline is not fatal where equitable tolling is available."); see also Avalos-Suarez v. Whitaker, No. 16-72773 (9th Cir. Nov. 16, 2018) (unpublished) (case remanded to the Board of Immigration Appeals which involved a legal claim over a 1993 order of deportation).
  4. Leflar, Robert A. (1977). "Choice-of-Law Statutes". Tennessee Law Review. 44: 951. Retrieved 5 September 2017. See also 18 U.S.C.   § 249(d) ("Statute of Limitations").
  5. 51 American Jurisprudence 2d Limitation of Actions § 174 (2007).
  6. Irwin v. Department of Veterans Affairs , 498 U.S. 89, 96 (1990) (footnotes omitted).
  7. See, e.g., Seattle Audubon Society v. Robertson, 931 F.2d 590 (9th Cir. 1991), reversed on other grounds, 503 U.S. 429 (1992) (holding that equitable tolling may be applied when plaintiffs are "prevented from asserting their claims by some kind of wrongful conduct on the part of the defendant.")
  8. Abbott v. State, 979 P.2d 994, 997-998 (Alaska 1999) (footnotes omitted).
  9. "United States v. Wong, 135 S.Ct. 1625 (2015)". Google Scholar. Retrieved 4 September 2017.
  10. McCloud v. State, Ariz. Dep't of Pub. Safety, 170 P.3d 691, 696 (Ariz. Ct. App. 2007)
  11. See Hosogai v. Kadota, 145 Ariz. 227, 229, 700 P.2d 1327, 1329 (1985)
  12. Kosman v. State, 199 Ariz. 184, ¶¶ 6, 10, 16 P.3d at 213
  13. Kyles v. Contractors/Eng'rs Supply, Inc., 190 Ariz. 403, 404, 406, 949 P.2d 63, 64, 66 (App.1997)
  14. Lantzy v. Centex Homes, 73 P.3d 517, 523 (Cal. 2003) (quotations and citations omitted).
  15. Hurwitch v. Adams, 155 A.2d 591,594 (Del. 1959).
  16. 1 2 Machules v. Dep't of Admin., 523 So.2d 1132, 1133-1134 (Fla. 1988) (footnotes omitted).
  17. Cocke v. Merrill Lynch & Co., 817 F.2d 1559, 1561 (11th Cir.1987) (quoting Naton v. Bank of California, 649 F.2d 691, 696 (9th Cir.1981))
  18. Hecht v. Resolution Trust Corp., 635 A.2d 394, 399 (Md. 1994) (quotations and citations omitted).
  19. Ferrucci v. Jack, 255 Md. 523, 526, 258 A.2d 414 (1969); McMahan v. Dorchester Fert. Co., 184 Md. at 159, 40 A.2d 313.
  20. Ray v. Taft, 336 N.W.2d 469, 473 (Mich. Ct. App. 1983).
  21. City of Tupelo v. Martin, 747 So.2d 822, 829 (Miss. 1999).
  22. Martinez v. Orr, 738 F.2d 1107, 1110 (10th Cir. 1984).
  23. Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984) ("One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence."); Ocana v. American Furniture Co., 91 P.3d 58, 66 (N.M. 2004).
  24. Riemers v. Omdahl, 687 N.W.2d 445, 454 (N.D. 2004).
  25. "Archived copy" (PDF). Archived from the original (PDF) on 20 July 2008. Retrieved 22 May 2022.{{cite web}}: CS1 maint: archived copy as title (link)