If a Case Is Dismissed Because of Improper Venue Is the FELA Limitation Tolled During the Pendency of State Suit
In Burnett v. New York Central R.R. Co., 380 U.S. 424, 13 L. Ed. 2d 941, 85 S. Ct. 1050 (1965), the trial court in Ohio dismissed a Federal Employers' Liability Act (FELA) lawsuit because of improper venue.
The plaintiff immediately filed a new suit with proper venue, but the trial court dismissed because he filed the new lawsuit more than three years after the cause of action accrued.
The plaintiff argued on appeal that the Ohio saving statute, which permitted refiling within a year of the dismissal without prejudice, gave him the right to bring the new case.
The Supreme Court rejected that argument, finding that "the incorporation of variant state saving statutes would defeat the aim of a federal limitation provision designed to produce national uniformity." Burnett, 380 U.S. at 433, 13 L. Ed. 2d at 948, 85 S. Ct. at 1057.
The Court explicitly listed the Illinois predecessor of section 13-217 as a saving statute that could not operate to protect a plaintiff's right to refile an action after the three-year limitations period. Burnett, 380 U.S. at 431, n.9, 13 L. Ed. 2d at 947, n.9, 85 S. Ct. at 1056, n.9.
Burnett constrains us to hold that section 13-217 cannot protect plaintiff's cause of action under the FELA.
But in Burnett the Court held that " the FELA limitation period is not totally inflexible, but, under appropriate circumstances, it may be extended beyond three years." Burnett, 380 U.S. at 427, 13 L. Ed. 2d at 944-45, 85 S. Ct. at 1054.
The court listed several circumstances that warranted equitable tolling of the limitations period, and concluded that, when the "plaintiff's case is dismissed for improper venue, the FELA limitation is tolled during the pendency of the state suit." Burnett, 380 U.S. at 435, 13 L. Ed. 2d at 949, 85 S. Ct. at 1058.
The Court reversed the Ohio court's dismissal and remanded for the case to proceed on it merits.