Jane Doe v. Drummond Company, Inc
2:09-cv-01041
N.D. Ala.Jan 17, 2012Background
- Plaintiffs filed Third Amended Complaint (TAC) in 2011 adding 33 new plaintiffs and 5 more decedents, and adding Mike Tracy as a defendant and James Adkins back in.
- Defendants Drummond entities and Augusto Jiminez move to dismiss the 36 new plaintiffs’ claims as time-barred under the ATS/TVPA ten-year statute of limitations.
- Plaintiffs seek equitable tolling due to unrest in Colombia and the 2007 demobilization of the AUC, arguing tolling applies until those events.
- Court treats statute-of-limitations as an affirmative defense and allows tolling inquiry; finds the record not yet dispositive for dismissal at this stage.
- Court concludes equitable tolling may apply to the 36 plaintiffs but denies the motion to dismiss without prejudice, allowing discovery to develop tolling facts.
- Case posture: partial motion to dismiss denied without prejudice, pending development of factual record through discovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 36 new plaintiffs’ claims are time-barred | Giraldo argues equitable tolling applies | Drummond contends claims are time-barred under ATS/TVPA ten-year limit | Not dismissed; tolling potentially applies; discovery permissible. |
| Whether equitable tolling is appropriate given Colombian unrest | Extraordinary circumstances delayed filing | Equitable tolling should require clear, unavoidable events | Equitable tolling potential; not decided now; discovery allowed. |
| Whether ATS/TVPA ten-year statute of limitations governs these claims | Ten-year limit should reflect shared statute; tolling may extend | Claims outside ten years are barred absent tolling | Tolling may apply; not dismissed at this stage. |
| Whether the dismissal should be with or without prejudice | Discovery may show tolling justifies continuation | Without prejudice unless timely, no tolling shown | Denied without prejudice; discovery ongoing. |
Key Cases Cited
- Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir. 2005) (AT[S] and TVPA share same ten-year statute; equitable tolling considerations described)
- Arce v. Garcia, 434 F.3d 1254 (11th Cir. 2006) (Equitable tolling evaluated; provenance of tolling doctrine clarified)
- Arce v. Garcia, 400 F.3d 1340 (11th Cir. 2005) (Initial tolling analysis; later vacated by 434 F.3d 1254)
- Justice v. United States, 6 F.3d 1474 (11th Cir. 1993) (Equitable tolling must be for extraordinary, uncontrollable events)
- Sandvik v. United States, 177 F.3d 1269 (11th Cir. 1999) (Equitable tolling principles require extraordinary circumstances)
- Irwin v. Dept. of Veterans Affairs, 498 U.S. 89 (1990) (Tolling described as extraordinary remedy; limited use)