Lead Opinion
Aftеr his first lawsuit was dismissed by the United States District Court for the Northern District of Georgia and the dismissal was affirmed by the United States Court of Appeals for the Eleventh Circuit, Dean Mark Gottschalk filed a purported renewal action in the Superior Court of Cobb County. The superior court dismissed all of Gottschalk’s claims on the ground that they were time-barred, resulting in this appeal. We conclude that Gottschalk’s claims were untimely, whether viewed under Georgia’s renewal statute (OCGA § 9-2-61 (a)) or under the tolling provision of the federal supplementаl jurisdiction statute (28 USC § 1367 (d)). As we explain below, under Georgia’s renewal statute, Gottschalk was required to file his renewal action within six months of the Eleventh Circuit’s decision affirming the district court’s dismissal of his first lawsuit, which he failed to do. See OCGA § 9-2-61 (a). Furthermore, the tolling provision of the federal supplemental jurisdiction statute does not apply if state law
The record reflects that Gottschalk and his ex-wife had two children together before their divorce in March 2005. In April 2006, Gottschalk’s ex-wife filed a petition for modification of child visitation rights in the Superior Court of Cobb County, seeking to have Gottschalk’s visits with their children supervised (the “Modification Proceeding”). In December 2008, the superior court entered a final order in the Modification Proceeding that, among other things, granted the requested supervision. This Court subsequently affirmed that order on appeal. See Gottschalk v. Gottschalk,
In April 2009, Gottschalk filed a pro se complaint in the United States District Court for the Northern District of Georgia against 38 individuals and entities for their alleged misconduct related to the Modification Proceeding (the “Federal Lawsuit”). Gottschalk’s cоmplaint was brought pursuant to 42 USC §§ 1983 and 1985 and alleged numerous additional federal constitutional and statutory claims, as well as a state law claim for intentional infliction of emotional distress. He later amended his complaint to allege state law claims for the unauthorized disclosure of confidential medical information, slander, libel, and invasion of privacy.
On March 30, 2010, the district court dismissed Gottschalk’s federal constitutional and statutory claims on several grounds. The district court declined to exercise supplemental jurisdiction over Gottschalk’s pendant state law claims and dismissed them without prejudice. Gottschalk appealed the dismissal of his federal constitutional claims to the United States Court of Appeals for the Eleventh Circuit. The Eleventh Circuit affirmed the district court in an unpublished opinion on June 16, 2011. The mandate from the Eleventh Circuit was issued on July 19, 2011.
The defendants answered and raised several affirmative defenses, including that all of Gottschalk’s claims were barred by the applicable statutes of limitation. The defendants subsequently moved to dismiss Gottschalk’s complaint and/or for summary judgment on the same ground. The defendants argued that under Georgia’s renewal statute, OCGA § 9-2-61 (a), Gottschalk’s deadline for filing his State Lawsuit was six months from June 16, 2011, the date that the Eleventh Circuit affirmed the district court’s order dismissing his claims in the Federаl Lawsuit, rather than from the later date when the Eleventh Circuit’s mandate was issued. Because Gottschalk did not file his State Lawsuit until December 20,2011, which was outside the six-month window for renewal calculated from June 16,2011, the defendants contended that the lawsuit was untimely under OCGA § 9-2-61 (a) and that Gottschalk thus could not take advantage of the statute’s tolling provision. The defendants also contended that the State Lawsuit was untimely under the separate tolling provision of the federal supplemental jurisdiction statute, 28 USC § 1367 (d), because it was filed mоre than 30 days after the dismissal of the Federal Lawsuit and thus fell outside the grace period afforded by that statute.
The superior court entered an order granting the motions to dismiss and for summary judgment that had been filed by the various defendants on the ground that all of Gottschalk’s claims in the State Lawsuit were time-barred. The superior court concluded that the
1. Gottschalk contends that the superior court erred in concluding that his complaint was not timely refiled in the State Lawsuit within the six-month window for renewal authorized by OCGA § 9-2-61 (a). According to Gottschalk, the trial court should have measured the six-month renewal period from the date that the mandate from the Eleventh Circuit was issued. We disagree.
OCGA § 9-2-61, which governs the renewal of discontinued or dismissed cases, states in relevant part:
(a) When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later [ ] . . . .
(c) The provisions of subsection (a) of this Code section granting a privilege of renewal shall apply if an action is discontinued or dismissed without prejudice for lack of subject matter jurisdiction in either a court of this state or a federal court in this state.
Gottschalk has failed to carry his burden of showing that the criteria for renewal have been met in this case. Contrary to his assertion, the start of the six-month window for renewal under OCGA § 9-2-61 (a) was triggered by the date the Eleventh Circuit affirmed the decision of the district court dismissing his Federal Lawsuit, not the later date when the Eleventh Circuit’s mandate was issued. Our conclusion in this regard is controlled by Owens v. Hewell,
In Owens, the plaintiffs sought to renew their state-law claims in state court after (1) the federal district court dismissed their fedеral-law claims on the merits and dismissed their state-law claims without prejudice for lack of subject matter jurisdiction; (2) the Eleventh Circuit affirmed the dismissal; and (3) the United States Supreme Court denied their petition for a writ of certiorari.
Owens thus stands for the proposition that when a plaintiff’s suit is originally filed in federal court, the district court dismisses the state-law claims, the federal appellate court affirms that dismissal, and the plaintiff does not obtain review of the decision in the United States Supreme Court, the six-month renewal period for refiling the
Nothing in Owens or earlier Georgia cases suggests that the six-month renewal period instead should start to run from the date when the mandate is later issued from the federal appellate court, and Gottschalk has failed to cite to any case law that would support such a position. Indeed, we have previously rejected the argument that this Court’s issuance of a remittitur (or mandate as it is called in federаl court) has any bearing on the calculation of a limitations period in cases where this Court affirms the trial court and no further review is obtained. Specifically, in Wilson v. Hinely,
For these combined reasons, we conclude that the six-month window for renewal authorized by OCGA § 9-2-61 (a) began to run on Gottschalk’s state-law claims when the Eleventh Circuit affirmed the district court’s dismissal of those claims in the Federal Lawsuit on June 16,2011. Because Gottschalk did not file his State Lawsuit until December 20, 2011, which was after the applicable statutes of limitation and the six-month renewal рeriod had expired, the superior court did not err in concluding that his claims were untimely under OCGA § 9-2-61 (a) and thus that he failed to file a valid renewal action under the statute.
2. Gottschalk contends that even if his State Lawsuit was untimely under OCGA § 9-2-61 (a), it was timely under the separate tolling provision afforded by the federal supplemental jurisdiction statute, 28 USC § 1367 (d). Therefore, he argues, the superior court erred in failing to apply section 1367 (d) in this case. Again, we disagree.
The federal supplemental jurisdiction statute, 28 USC § 1367, contains a tolling prоvision for supplemental state-law claims that are included in a federal civil action but are later dismissed. Section 1367 provides in relevant part:
(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
(d) The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.
Statutory interpretation is a question of law, and our review is de novo. Hill v. First Atlantic Bank,
The definition of words in isolation, however, is not necessarily controlling in statutory construction. A word in a statute may or may not extend to the outer limits of its definitional possibilities. Interprеtation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.
Dolan v. United States Postal Svc.,
In light of these principles, the first question we must address is whether the tolling language of 28 USC § 1367 (d) is ambiguous. “A statute is ambiguous when it is susceptible of more than one natural and reasonable interpretation.” Fulton County Bd. of Tax Assessors v. Greenfield Investment Group,
Under the “suspension” approach, the statute could be read to stop the running of the statute of limitations and, following dismissal of a claim and the expiration of 30 additional days, tack on however much time remained when the claim was originally filed in federal court. Alternatively, under the “grace period” approach, the statute could abate the expiration of any period of limitations for as long as a claim was pending in federal court plus 30 days after dismissal. Finally, under the “substitution” approach, the statute might replace any state deadline with a federal one, such that parties would have 30 days to refile following dismissal whether or not a longer period might otherwise still remain under state law.
(Citations and punctuation omitted.) City of Los Angeles,
Courts around the country are split regarding which interpretation ultimately should be adopted for the tolling provision in 28 USC § 1367 (d), with some courts adopting the suspension approach
Principles of fedеralism dictate a distinct approach to the construction of statutes impinging on state sovereignty, one designed to ensure courts do not assume an incursion where none was intended. When Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute. This principle applies when Congress intends to pre-empt the historic powers of the States or when it legislates in traditionally sensitive аreas that affect the federal balance. In such cases, the clear statement principle reflects an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere. Section 1367 (d) is such a balance-altering statute; it preempts state law, supplanting to some extent state statutes of limitations that would otherwise apply to affected claims.
While Congress has the constitutional authority to preempt state law, we start with the presumption that it has not exercised that power and will find preemption only in the face of a clear and manifest expression of intent to do so. This presumption operates with particular force in areas traditionally the subject of state regulation. Self-evidently, states long have established, and have a uniquely strong interest in, the limitations periods that apply to their own state law claims in their own state courts.
(Citations and punctuation omitted.) City of Los Angeles,
Notably, the presumption against preemption extends beyond the question whether Congress intended any preemption at all; the presumption also affects “questions concerning the scope of [the] intended invalidation of state law.” (Emphasis in original.) Medtronic, Inc.,
Applying the presumption to the present case, we conclude that the grace period approach is the most appropriate interpretation of 28 USC § 1367 (d). Of the three possible interpretations of section 1367 (d), the grace period approach is the least intrusive upon state sovereignty because
[i]t alters the limitations period only when necessary to prevent a time bar; if a clаim is dismissed more than 30 days before the state limitations period would have expired, the grace period approach would change the state period not at all. Even when extension of the limitations period to prevent a bar is necessary, the grace period view distorts the otherwise applicable period only by the difference between when the limitations period ran and the claim was dismissed, plus 30 days[.]
City of Los Angeles,
It is true that the presumption against preemption can be rebutted where Congress has made its intent clear. See Egelhoff v. Egelhoff,
For these combined reasons, we adopt the grace period approach and construe 28 USC § 1367 (d) as allowing state-law claims that would otherwise be time-barred to be refiled in state court, if the claims are refiled no later than 30 days after federal court dismissal.
Judgment affirmed. Boggs, J., concurs.
Notes
“A ‘mandate’ is the official notice of action of the appellate court, directed to the court below, advising that court of the action taken by the appellate court, and directing the lower court to have the appellate court’s judgment duly recognized, obeyed, and executed.” 5 Am Jur2d Appellate Review § 725. Under the Federal Rules of Appellate Procedure, “the mandate consists of a certified copy of the judgment, a copy of the court’s opinion, if any, and any direction about costs.” Fed. Rule of Appellate Procedure 41 (a).
The defendants named in the State Lawsuit were Dianne Woods; Huff, Woods & Hamby; Susan Volentine; Sheri Siegel; Emmett Fuller; Psychological Affiliates; and Barbara Lassiter.
Gottschalk concedes that all of his claims, except for slander and libel, were subject to a two-year statute of limitation. His slander and libel claims were subject to a one-yeаr limitation period. See OCGA § 9-3-33; Jahannes v. Mitchell,
Gottschalk filed an amended complaint in the State Lawsuit that incorporated additional factual allegations of misconduct by the defendants purportedly occurring from March 2008 and continuing through December 2010. In its dismissal order, the superior court ruled that Gottschalk’s complaint as amended “improperly raised claims against the Defendants that were not alleged in the Federal [Lawsuit]” and that his “conclusory amended allegations stating that the Defendants’ actions constituted a continuing tort [were] insufficient to state a timely claim for relief.” Gottschalk has not challenged these rulings on appeal and thus has abandoned any allegation of error with respect to them. See Steed v. Fed. Nat. Mtg. Corp.,
The renewal statute does not suspend the running of the statute of limitation while the federal lawsuit is pending. See Stevens v. Faa’s Florist,
Ga. Civ. Code 1910 § 4381 provided in relevant part: “If a plaintiff shall be non-suited, or shall discontinue or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitаtion, with the original case).]”
Ga. Code § 3-808 provided in relevant part: “If a plaintiff shall discontinue or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitation, with the original case[.]”
See In re Vertrue Inc. Mktg. and Sales Practices Litigation,
See, e.g., In re Vertrue Inc. Mktg. and Sales Practices Litigation,
See, e.g., Beck v. Prupis,
We note that the Eleventh Circuit also appears to have construed 28 USC § 1367 (d) as creating a 30-day grace period for the refiling of state-law claims. See Beck,
The parties dispute whether the 30-day grace period afforded by 28 USC § 1367 (d) begins to run when a federal district court dismisses the state-law claims, when a federal appellate court affirms the dismissal, or when the mandate is issuеd from the federal appellate court. We need not resolve this issue because it does not affect the outcome.
Appellee Susan Volentine’s motion for the imposition of a penalty against Gottschalk for frivolous appeal is hereby denied. See Court of Appeals Rule 15 (b).
Concurrence Opinion
concurring specially.
I concur fully in Division 1. I concur in judgment only as to Division 2 because I do not agree with all that is said in the majority