Norex Petroleum Limited, Appellant,v.Leonard Blavatnik, et al., Respondents.BriefN.Y.May 6, 2014To Be Argued By: BARRY R. OSTRAGER Time Requested: 30 Minutes APL-2013-00263 New York County Clerk’s Index No. 650591/11 Court of Appeals STATE OF NEW YORK NOREX PETROLEUM LIMITED, Plaintiff-Appellant, —against— LEONARD BLAVATNIK, VICTOR VEKSELBERG, SIMON KUKES, ACCESS INDUSTRIES, INC., ALFA GROUP CONSORTIUM, RENOVA, INC., OAO TYUMEN OIL COMPANY, TNK-BP LIMITED and BP PLC, Defendants-Respondents. REPLY BRIEF FOR PLAINTIFF-APPELLANT d BARRY R. OSTRAGER MARY KAY VYSKOCIL JONATHAN M. WEISS HIRAL D. MEHTA SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, New York 10017 (212) 455-2000 bostrager@stblaw.com mvyskocil@stblaw.com hmehta@stblaw.com —and— SIMPSON THACHER & BARTLETT LLP 1999 Avenue of the Stars, 29th Floor Los Angeles, California 90067 (310) 407-7500 jweiss@stblaw.com Attorneys for Plaintiff-Appellant REPRODUCED ON RECYCLED PAPER i TABLE OF CONTENTS Page PRELIMINARY STATEMENT ............................................................................... 1 ARGUMENT ............................................................................................................. 7 I. RESPONDENTS’ ARGUMENTS REGARDING THE INTERPLAY OF CPLR 202 AND CPLR 205 IGNORE THIS COURT’S DECISION IN GLOBAL FINANCIAL, WHICH PROVIDES THE ANALYTICAL FRAMEWORK FOR HARMONIZING THESE STATUTES IN THE MANNER THE NEW YORK LEGISLATURE INTENDED ............................................ 7 II. RESPONDENTS’ ARGUMENT THAT CPLR 202 TRUMPS CPLR 205 CONFLICTS WITH CONTROLLING PRECEDENTS OF THIS COURT ......................................................... 12 III. NOREX’S FEDERAL ACTION WAS NOT ADJUDICATED ON THE MERITS ................................................................................... 18 IV. NOREX’S CLAIMS ARE TIMELY UNDER 28 U.S.C. § 1367(D) .................................................................................................... 20 A. Section 1367(d) Tolled Norex’s Supplemental Claims While Pending in Federal Court and for an Additional 30 Days After the Federal Action’s Conclusion ..................................................................................... 21 B. Norex’s Supplemental Claims Were Timely Filed Under the Plain Language of § 1367(d) ........................................ 23 C. Respondents’ Reliance on Inapposite Cases Is Unavailing ..................................................................................... 26 V. NOREX’S NEW YORK STATE LAW CLAIMS ARE TIMELY UNDER THE RELATION-BACK DOCTRINE .................................... 28 CONCLUSION ........................................................................................................ 31 ii 070653-0002-15230-Ac TABLE OF AUTHORITIES Page(s) Cases Besser v. E.R. Squibb & Sons, Inc., 146 A.D.2d 107 (1st Dep’t 1989), aff’d, 75 N.Y.2d 847 (1990) ........................11 Bittner v. Cummings, 188 A.D.2d 504 (2d Dep’t 1992) ........................................................................29 Bd. of Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478 (1980) ............................................................................................26 Bonifield v. County of Nevada, 114 Cal. Rptr. 2d 207 (Ct. App. 2002) ...............................................................24 Brengettcy v. Horton, No. 01 C 197, 2006 WL 1793570 (N.D. Ill. May 5, 2006) ................................30 Browning Ave. Realty Corp. v. Rubin, 207 A.D.2d 263 (1st Dep’t 1994) .......................................................................20 Buchholz v. U.S. Fire Ins. Co., 53 N.Y.S.2d 608 (1945) ......................................................................................19 Carrick v. Cent. Gen. Hosp., 51 N.Y.2d 242 (1980) ............................................................................ 18, 19, 20 Carver v. Lehman, 558 F.3d 869 (9th Cir. 2009) ..............................................................................22 City of L.A. v. County of Kern, 154 Cal. Rptr. 3d 122 (Ct. App. 2013) ...............................................................24 Criales v. Am. Airlines, Inc., 105 F.3d 93 (2d Cir. 1997) .......................................................................... 19, 20 iii 070653-0002-15230-Ac Croce v. Preferred Mut. Ins. Co., 938 N.Y.S.2d 745 (Suffolk Cnty. Dist. Ct. 2011) ..............................................12 Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) ..............................................................................................15 Gaines v. City of New York, 215 N.Y. 533 (1915) ...........................................................................................12 Garcia v. Int’l Elevator Co., 358 F.3d 777 (10th Cir. 2004) ............................................................................17 George v. Mt. Sinai Hosp., 47 N.Y.2d 170 (1979) .........................................................................................13 Global Fin. Corp. v. Triarc Corp. (“Global Financial”), 693 N.Y.S.2d 525 (1999) ............................................................................ passim GML, Inc. v. Cinque & Cinque (“GML”), 9 N.Y.3d 949 (2007) ........................................................................ 13, 15, 16, 17 GML, Inc. v. Cinque & Cinque, No. 106942/01, 2005 WL 5960011 (N.Y. Sup. Ct. 2005) .................................16 Goldsmith v. Learjet, Inc., 917 P.2d 810 (Kan. 1996) ...................................................................................18 Goldstein v. N.Y. State Urban Dev. Corp., 13 N.Y.3d 511 (2009) ................................................................................. passim Goodman v. Best Buy, Inc., 755 N.W.2d 354 (Minn. Ct. App. 2008) .............................................................24 Goodman v. Best Buy, Inc., 777 N.W.2d 755 (Minn. 2010) ...........................................................................24 Graziano v. Pennell, 371 F.2d 761 (2d Cir. 1967) ................................................................................. 1 iv 070653-0002-15230-Ac Greenblatt v. N.Y. Sur. Co. 246 A.D.2d 385 (1st Dep’t 1998) .......................................................................22 Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99 (1945) ..................................................................................... 3, 4, 15 HCA Health Servs. of Fla., Inc. v. Hillman, 906 So. 2d 1094 (Fla. Dist. Ct. App. 2004) .......................................................... 9 In re Air Crash Disaster Near Roselawn, Ind., 96 F.3d 932 (7th Cir. 1996) ................................................................................28 In re BP plc Sec. Litig., 843 F. Supp. 2d 712 (S.D. Tex. 2012) ................................................................28 In re Vertrue Inc. Mktg. & Sales Prac. Litig., 719 F.3d 474 (6th Cir. 2013) ..............................................................................24 In re Vertrue Inc. Mktg. & Sales Prac. Litig., 712 F. Supp. 2d 703 (N.D. Ohio 2010) ....................................................... 24, 25 Jinks v. Richland County, S.C., 538 U.S. 456 (2003) ................................................................................... 1, 3, 27 Matter of Smith Barney, Harris Upham & Co. v. Luckie, 85 N.Y.2d 193 (1995) .........................................................................................17 McClearn v. Cowen & Co., 60 N.Y.2d 686 (1983) .........................................................................................20 McKinney v. Fairchild Int’l, Inc., 487 S.E. 913 (W. Va. 1997) ................................................................................18 Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146 (2d Cir. 2005) .............................................................................2, 5 Oleski v. Dep’t of Pub. Welfare, 822 A.2d 120 (Pa. Commw. Ct. 2003) ...............................................................24 v 070653-0002-15230-Ac Portfolio Recovery Assocs., LLC v. King, 14 N.Y.3d 410 (2010) .................................................................................. 16, 17 Pye v. NuAIRE, Inc., No. A12-0734, 2012 WL 6652618 (Minn. Ct. App. Dec. 24, 2012) .................24 Raygor v. Regents of Univ. of Minnesota, 534 U.S. 533 (2002) ............................................................................................27 Reiter v. Sonotone Corp., 442 U.S. 330 (1979) ............................................................................................25 Rundquist v. Vapiano SE, 798 F. Supp. 2d 102 (D.D.C. 2011) ....................................................................28 Sellan v. Kuhlman, 261 F.3d 303 (2d Cir. 2001) ...............................................................................19 Turner v. Kight, 406 Md. 167 (2008) ..................................................................................... 23, 24 United States v. Rivera, 844 F.2d 916 (2d Cir. 1988) ...............................................................................20 United States v. Zedner, 555 F.3d 68 (2d Cir. 2008) .......................................................................... 21, 23 Voda v. Cordis Corp., 476 F.3d 887 (Fed. Cir. 1997) ............................................................................28 Weinrib v. Duncan, 962 So. 2d 167 (Ala. 2007) .................................................................................24 Williams v. State of N.Y., 235 A.D.2d 776 (3d Dep’t 1997) ........................................................................29 Statutes 10 U.S.C. § 843(e) ...................................................................................................25 28 U.S.C. § 1367(a) .................................................................................................28 vi 070653-0002-15230-Ac 28 U.S.C. § 1367(d) ......................................................................................... passim 47 U.S.C. § 415(d) ...................................................................................................25 49 U.S.C. § 11705(d) ...............................................................................................25 CPLR 202 ......................................................................................................... passim CPLR 203(f) ...................................................................................................... 29, 30 CPLR 205(a) .................................................................................................... passim Fed. R. Civ. P. 15 .....................................................................................................29 Fed. R. App. P. 41 ....................................................................................................21 Other Authorities Amici Curiae Br. of Professors Rowe, Burbank & Mengler ..................................... 2 Amicus Curiae Br. of Professor Siegel ................................................... 2, 20, 22, 25 H.R. Rept. No. 101-734 (1990), reprinted in 1990 U.S.C.C.A.N 6860 .................... 2 Siegel, N.Y. Prac. § 265 (5th ed.) ............................................................................18 1 070653-0002- PRELIMINARY STATEMENT New York’s savings statute (CPLR 205(a)) and its federal analog (28 U.S.C. § 1367(d)) were designed to apply precisely in the circumstances of this case—where “a court has ordered a timely action to be terminated for some technical defect that can be remedied in a new one.” Graziano v. Pennell, 371 F.2d 761, 763 (2d Cir. 1967) (discussing the “obvious purpose of CPLR § 205(a)”); Jinks v. Richland County, S.C., 538 U.S. 456, 459 (2003) (“To prevent the limitations period on such supplemental claims from expiring while the plaintiff was fruitlessly pursuing them in federal court, § 1367(d) provides a tolling rule that must be applied by state courts[.]”). Respondents insist that allowing Norex to avail itself of CPLR 205(a) would sanction forum shopping, something CPLR 202 was designed to prevent. But there can be no shopping for a more favorable statute of limitations period where a litigant originally files a suit in federal court in New York that is timely filed under any potentially applicable statute of limitations and then simply reinstates that suit in another forum in New York in accordance with CPLR 205(a) and 28 U.S.C. § 1367(d). Thus, the underlying premise of Respondents’ argument with respect to CPLR 205(a) is baseless. Moreover, the notion that “Norex is forum shopping,” Opp’n Br. 27, was expressly rejected by the federal court in New 2 York in which Norex originally filed this action. Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 155 (2d Cir. 2005). Nonetheless, Respondents reprise their argument that Norex “picked the wrong place and they lost [when] [t]hey went to Federal Court” and should suffer the consequences of their choice. (R. 255). See Opp’n Br. 6-7 (arguing that Norex should not be allowed to “escape its own faulty litigation decisions” and that Norex is “once again shop[ping] its claims”). This argument ignores both the underlying policy and clear language of CPLR 205(a) and § 1367(d).1 This Court, the U.S. Supreme Court, the U.S. Congress, and the New York legislature have collectively established a framework that assures a litigant will not be prejudiced for asserting non-federal claims in federal court which ultimately must be litigated in state court. As the U.S. Supreme Court made clear 1 As proposed amicus, Professor Jonathan Siegel, a tenured full Professor of Law at George Washington University Law School, who has taught Civil Procedure and Federal Courts for nearly 20 years and is contracted to publish a casebook on the subject, states in his amicus brief: “The First Department’s construction of § 1367(d) cannot be correct. It wholly undermines the purpose of § 1367.” Amicus Curiae Br. of Professor Siegel at 2 (filed Jan. 9, 2014). Professors Thomas D. Rowe (Duke Univ. School of Law emeritus), Stephen B. Burbank (Univ. of Pennsylvania School of Law), and Thomas M. Mengler (President, St. Mary’s Univ.), who expressly endorse Professor Siegel’s proposed amicus brief here, submitted an amicus brief in support of Norex’s Motion for Leave, in which they likewise characterized the First Department’s reading of § 1367(d) as an “intolerable Catch-22” that “robs the valid federal statute of all its intended preservative effect” and “subverts the purpose of § 1367(d).” Amici Curiae Br. of Professors Rowe, Burbank & Mengler at 2-3. Professors Rowe, Burbank, and Mengler were actively involved in the drafting of § 1367(d) and the House of Representatives Committee on the Judiciary thanked them “for their considerable efforts in connection with the Subcommittee’s subsequent revisions of the section.” H.R. Rept. No. 101-734, at 27 n.11 (1990), reprinted in 1990 U.S.C.C.A.N. 6860, 6876. 3 in Jinks, Congress has guaranteed a diligent litigant’s ability to pursue meritorious claims in state court after “fruitlessly pursuing them in federal court.” Jinks, 538 U.S. at 459. Congress codified this rule in 28 U.S.C. § 1367(d), which reflects the same policy the New York legislature codified in CPLR 205(a). The U.S. Supreme Court expressly stated in Guaranty Trust Co. of N.Y. v. York, and this Court implicitly recognized in Goldstein v. New York State Urban Development Corp., “the accident of a suit by a non-resident litigant in a federal court instead of in a State court a block away, should not lead to a substantially different result.” Guaranty Trust Co., 326 U.S. 99, 109 (1945); see also Goldstein, 13 N.Y.3d 511, 522 (2009) (upholding application of CPLR 205(a) to non-federal claims initially filed in federal court and then re-filed in state court because “Petitioners had every right to litigate their federal claims in federal court and to include in their federal action a supplemental state law cause of action”) (citation omitted). There is no dispute that Norex’s claims were timely under any conceivably applicable statute of limitations when filed in federal court in New York within weeks of the events that give rise to its claims. Had Norex brought suit initially in New York state court and then amended its complaint to add its New York tort claims arising out of the same transactions and occurrences, there is no question those claims would be timely under New York’s liberal standard for 4 amending pleadings and New York’s well-established relation-back doctrine. Similarly, had the federal court chosen to exercise jurisdiction over Norex’s supplemental claims after dismissing Norex’s federal RICO claims, Norex would have had the right to amend those claims under the liberal amended pleading and relation-back principles of the federal rules. That Norex first came to federal court instead of state court and the federal court ultimately declined to retain jurisdiction over Norex’s supplemental claims “should not lead to a substantially different result.” See Guaranty Trust, 326 U.S. at 109. CPLR 205(a) and 28 U.S.C. § 1367(d) were enacted precisely to ensure that it does not. Respondents essentially contend that Norex should be precluded from utilizing the courts in New York to seek the justice Norex could not get in Russia. But there is no principled or policy reason why Norex cannot prosecute an action in New York against the New York resident defendants who orchestrated the takeover of Norex’s property in Tyumen, Siberia—whose local courts Russia’s Director of the Federal Bankruptcy Service referred to as “the legal department of [Defendant] TNK.” (R. 1644 (British House of Commons report)). Defendants-Respondents seek to recast the prior Russian court proceedings as somehow legitimate—a question entirely beside the point in this appeal—but in doing so Respondents gloss over Defendant BP’s own statements about TNK’s corruption of the Siberian court system and ignore that Respondents 5 appropriated at machine-gun point Norex’s majority interest in the multi-billion dollar Yugraneft oil fields. (R. 68).2 With respect to the Russian court proceeding that stripped Norex of its majority interest in Yugraneft (the “Know-How case”)— the crux of Norex’s complaint here—the Second Circuit held “the Russian default judgment [against Norex] in the Know-How case cannot be given preclusive effect by an American court.” Norex Petroleum Ltd., 416 F.3d at 161 (emphasis added). Defendants-Respondents’ unlawful scheme continues today. Three months ago they instituted yet another action in the corrupt courts of Tyumen designed to seize Norex’s remaining 20% interest in Yugraneft. 3 Significantly, Respondents conspicuously fail to mention this latest assault on Norex in the lengthy procedural history of the Russian court proceedings in their joint responsive brief. Cf. Rule 500.6. 2 Respondents acknowledge that “[i]n 1999, TNK purchased Chernogorneft, including its minority interest in Yugraneft, in an auction overseen by a Russian bankruptcy court.” Opp’n Br. 8. But Respondents neglect to mention that at the time “Chernogorneft (including as to its interest in Yugraneft) was properly sold to TNK” (id. at 9), Defendant BP stated that “the entire bankruptcy process [w]as invalid” and that TNK bought Chernogorneft at “a ridiculous price” through an “illegal sale.” (R. 1260). 3 On September 30, 2013, the successor in interest to Defendant TNK filed a related lawsuit in Tyumen, Western Siberia against Norex, seeking to recover in excess of 200,000,000 RUB for damages allegedly suffered defending in New York the allegedly “groundless” claims that are now pending before this Court and to freeze Norex’s remaining shares in Yugraneft. The court granted TNK’s request for an injunction arresting Norex’s shares in Yugraneft on October 10, 2013, retroactive to September 10, 2013. 6 In their zeal to deprive Norex of its opportunity to litigate claims that have never been adjudicated on the merits in any forum, Respondents fail to recognize that: • In Global Financial, this Court applied CPLR 205(a) to a claim by a non- resident plaintiff like Norex whose claims accrued outside of New York; • No relevant New York precedent has ever held that CPLR 202 requires a New York court to borrow a foreign jurisdiction’s savings statute (or lack of one) for the purpose of trumping CPLR 205; • This Court has expressly refused to borrow a foreign tolling provision when doing so would lead to absurd results and runs contrary to legislative intent, as is the case here; • Norex’s federal action was not adjudicated on the merits; and • Norex’s supplemental non-federal claims are timely under 28 U.S.C. § 1367(d) even if CPLR 205(a) does not apply. For all of the foregoing reasons as well as those explained in more detail below (and in Norex’s opening brief), this Court should reverse the First Department’s decision and allow Norex to finally have its day in court. 7 ARGUMENT I. RESPONDENTS’ ARGUMENTS REGARDING THE INTERPLAY OF CPLR 202 AND CPLR 205 IGNORE THIS COURT’S DECISION IN GLOBAL FINANCIAL, WHICH PROVIDES THE ANALYTICAL FRAMEWORK FOR HARMONIZING THESE STATUTES IN THE MANNER THE NEW YORK LEGISLATURE INTENDED This Court recognized in Global Financial that in determining whether a subsequent action in New York state court is timely filed, courts must look to the filing date of the previous federal action. Here, there is no question that Norex’s original federal action was timely filed under any conceivably applicable statute of limitations. The procedural history of Global Financial, which is materially indistinguishable from this case, is instructive. Like Norex, Global Financial, a non-resident plaintiff, initially brought suit in federal court in Manhattan. And, like Norex, Global Financial re-filed its claims “across the street, in Supreme Court, New York County,” after a non-merits dismissal in federal court. Global Fin. Corp. v. Triarc Corp., 693 N.Y.S.2d 525, 527 (2009). After reciting this procedural history, the Court, citing CPLR 205, recognized the commencement date of the federal action as the date for measuring the timeliness of the plaintiff’s claims under various foreign limitations periods: “this action is timely if the Federal action was timely when commenced on November 9, 1995 (CPLR 205).” Id. Applying CPLR 202, this Court found that under any of the potentially 8 applicable statutes of limitations the action was time barred as of the commencement date of the federal action. This is precisely the analytical framework for the interplay of CPLR 202 and 205 that Norex argues the Court should once again employ here, as 205 does not operate to extend or alter any applicable limitations period but rather fixes the proper commencement date to measure compliance with the relevant statute of limitations, which the Court would borrow under CPLR 202. Respondents attempt to downplay the significance of this Court’s decision in Global Financial by insisting that “no CPLR § 205(a) issue was presented” in that case. Opp’n Br. 24 (emphasis in original). That is plainly incorrect. There were three possible foreign statutes of limitations applicable in Global Financial—Delaware, where the plaintiff was incorporated, Pennsylvania, where the defendant claimed the plaintiff had its principal place of business, and Florida, where the plaintiff claimed the plaintiff had its principal place of business. Id. at 527 & n.1. In order to determine whether plaintiff’s claims were time barred under any of these potentially “borrowed” foreign statutes of limitations, the Court cited CPLR 205 to determine whether the claims were timely filed as of the commencement date of the prior federal action and could be reinstated in New York state court pursuant to CPLR 205. Id. at 527-28. 9 Respondents contend that this Court’s citation to CPLR 205 is inconsequential because “the laws of the foreign jurisdictions referred to under CPLR § 202 (Pennsylvania and Delaware) were virtually identical to CPLR § 205(a).” Opp’n Br. 24. To suggest that this Court’s citation to CPLR 205 is somehow shorthand for the “virtually identical” Delaware and Pennsylvania savings statutes is an extraordinary leap which is in no way suggested either by this Court’s reasoning or decision. Moreover, Respondents tellingly omit Florida, which has no savings statute. See HCA Health Servs. of Fla., Inc. v. Hillman, 906 So. 2d 1094, 1098 (Fla. Dist. Ct. App. 2004) (“[U]nlike the majority of states, Florida has chosen not to adopt a ‘savings statute[.]’”). If this Court had “borrowed” Florida’s non-existent savings statute as a substitute for New York’s savings statute, as Respondents’ interpretation requires, it obviously would have made no sense for the Court to fix the commencement date of the action as the date of the prior federal filing because there could be no subsequent state court filing under Florida law. Florida, unlike New York, does not make provision for “a plaintiff whose case has been dismissed otherwise than on the merits to . . . reinstitute[] [the dismissed action] in the proper state court notwithstanding the expiration of the limitations period.” Id. (citation omitted). In setting the framework for the Court’s 202 analysis, this Court cited to only one savings statute, CPLR 205—not Pennsylvania or Delaware’s “virtually 10 identical” savings statutes and certainly not Florida’s non-existent savings statute. Global Financial, 93 N.Y.2d at 527. Respondents’ attempt to read the Court’s citation to CPLR 205 out of the opinion as surplusage, a “passing reference,” and as short hand for other non-New York savings statutes is illogical and a distortion of the clear language of this Court’s opinion. See Opp’n Br. 23-24. Respondents should respect that this Court said what it meant and meant what it said in its unanimous decision. Global Financial plainly stands for the proposition that CPLR 205(a) is available to non-resident plaintiffs, like Global Financial and Norex, whose claims accrue outside of New York, even if the state laws “borrowed” under CPLR 202 for purposes of determining the limitations period (Florida in the case of Global Financial, Alberta in this case) do not have a savings statute at all. In short, under Global Financial, the commencement date for purposes of determining the timeliness of Norex’s state court action is the filing date of the original federal action. And it is undisputed that Norex’s claims were timely filed under any conceivably applicable statute of limitations when filed in federal court in New York within weeks of the events that give rise to its claims. Respondents further contend that CPLR 205(a) is only “available to New York residents or parties whose injuries accrue in New York.” Id. at 29. But nothing in the text of 205, its legislative history, or the long line of cases that have 11 explored its purpose, suggests that CPLR 205(a) was intended for the exclusive benefit of New York residents. See Opening Br. 29. To support their argument, Respondents cite to Besser v. E.R. Squibb & Sons, Inc., 146 A.D.2d 107, 115-16 (1st Dep’t 1989), aff’d, 75 N.Y.2d 847 (1990), but Besser only serves to bolster Norex’s interpretation of the interplay of CPLR 202 and 205. In Besser, a non-New York resident whose cause of action accrued in Pennsylvania brought suit in New York. In dismissing the action as untimely, the First Department declined to apply New York’s Toxic Tort Revival Statute to save her claims. Importantly, the Besser court looked to the purpose of the temporary, context specific, Toxic Tort Revival Statute at issue, and because that statute was intended to provide relief to “New York residents only—not the entire world,” id. at 110, the court declined to extend its benefits to an out-of-state plaintiff’s claims. Unlike the revival statute at issue in Besser, however, the remedial benefit of CPLR 205(a) extends to both resident plaintiffs and non-resident plaintiffs alike, as this Court has already recognized in Global Financial. Following Besser’s reasoning—and focusing on the question of whether the savings statute at issue is intended to apply to non-residents—CPLR 205(a) cannot be trumped by CPLR 202. CPLR 205(a) is a “vitally important” remedial statute that should not “be frittered away by any narrow construction” or “subordinate[d].” 12 Goldstein, 13 N.Y.3d at 521; Gaines v. City of New York, 215 N.Y. 533, 539 (1915) (Cardozo, J.). II. RESPONDENTS’ ARGUMENT THAT CPLR 202 TRUMPS CPLR 205 CONFLICTS WITH CONTROLLING PRECEDENTS OF THIS COURT Respondents claim erroneously that it is “[w]ell-settled precedent” that CPLR 202 requires Norex to borrow Alberta, Canada’s “tolling rules” to the exclusion of CPLR 205(a). See Opp’n Br. 18. According to Respondents, “tolling rules” include savings statutes like CPLR 205(a) and because Alberta does not have a savings statute, Norex’s claims were not timely filed in New York state court. But this is patently untrue. CPLR 205(a) is not a tolling statute. It simply provides a period of time within which an action that was timely filed can be re- filed after a non-merits dismissal. It does not “toll” any applicable statute of limitations; it simply permits a plaintiff to move a timely filed case from one New York court to another.4 It is nonsensical to suggest that an action that is timely 4 Notably, CPLR 205(a) has been interpreted in other contexts to allow a plaintiff who originally filed suit in the wrong state court in New York to re-file her suit within six months in a different New York state court venue. For example, in Croce v. Preferred Mutual Insurance Co., the Suffolk County District Court granted a motion to dismiss on the grounds of forum non conveniens (CPLR 327) because “[e]very single contact” was with Erie County, New York. 938 N.Y.S.2d 745, 749 (Suffolk Cnty. Dist. Ct. 2011). In dismissing the complaint, the court expressly noted that the plaintiff would be able to re-file a timely suit in another forum in New York under CPLR 205(a). Id. Manifestly, had the plaintiff been a non-resident, CPLR 202 would not preclude the plaintiff from re-filing her suit in another New York county, as the Global Financial decision makes clear. 13 filed in federal court is barred by the statute of limitations when it is promptly refiled in state court in accordance with both state and federal savings statutes. The tolling rules Respondents claim must be borrowed under 202 all serve to extend the time in which an action may be timely filed in the first instance by “tolling” the running of the statute of limitations for various equitable reasons— e.g., the inability to serve a defendant who is absent from the forum (absent defendant toll), the inability of a minor to protect her rights (infancy toll), the inability to file an action during a time of war (war toll), or the inability to protect one’s rights while suffering from a mental disability (insanity toll). See, e.g., GML, Inc. v. Cinque & Cinque, 9 N.Y.3d 949, 951 (2007) (“[T]he purpose of a tolling statute is to allow a plaintiff additional time to serve a defendant where defendant’s absence from the jurisdiction has made service a practical impossibility.”). By contrast, as this Court has recognized, CPLR 205(a) serves the entirely distinct remedial purpose of “provid[ing] a second opportunity to the claimant who has failed the first time around because of some error pertaining neither to the claimant’s willingness to prosecute in a timely fashion nor to the merits of the underlying claim.” George v. Mt. Sinai Hosp., 47 N.Y.2d 170, 178- 79 (1979) (emphasis added). No matter what label one uses to characterize CPLR 205(a), it is qualitatively different from the tolls borrowed by this Court to extend 14 the time to file an action in the first instance. And significantly, this Court has never “borrowed” a foreign jurisdiction’s savings statute (or lack of one) to preclude the application of CPLR 205(a). Even if CPLR 205(a) could be lumped together with the categorically distinct tolling rules discussed above, Respondents’ argument fails for at least the following additional reasons. First, as discussed at length supra, in this case, borrowing the non- existent Alberta savings clause would undermine the purpose of CPLR 202 because CPLR 205(a) is designed to safeguard the anti-forum shopping purpose of CPLR 202. CPLR 205(a) applies only to successive actions in New York that were initially timely filed in New York, as Norex’s federal action indisputably was here. CPLR 205(a) thus reinforces CPLR 202’s goal of ensuring that if a non- resident wishes to file suit in the State of New York it must do so within the time allotted by New York or a foreign jurisdiction, whichever is shorter. It would make no sense to “borrow” Alberta’s non-existent savings statute in place of CPLR 205(a) when doing so does not further the anti-forum shopping purpose of CPLR 202, while at the same time vitiating the “vitally important” remedial purpose of CPLR 205(a) long recognized by this Court. See Goldstein, N.Y.S.2d at 521. Defendants-Respondents offer absolutely no policy rationale as to why Norex should be barred from moving its timely filed suit across the street 15 from federal to state court in New York pursuant to CPLR 205(a). The statute of limitations that governed Norex’s supplemental claims in federal court is the same statute of limitations that governs those claims in New York state court. Indeed, as the U.S. Supreme Court recognized in applying New York’s statute of limitations to non-federal claims asserted in New York federal court, “[t]he operation of a double system of conflicting laws in the same State is plainly hostile to the reign of law.” Guaranty Trust, 326 U.S. at 112. There can never be different applicable statutes of limitations as between state and federal court because it is a bedrock principle of our federal system that the same statute of limitations law governs in both forums. See id.; see also Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). And because CPLR 205(a) only operates to save claims timely filed in a New York state or federal court, CPLR 205(a) perforce safeguards against the forum shopping that CPLR 202 was designed to prevent. Second, this Court has made clear that it will not borrow a tolling rule under CPLR 202 where doing so runs contrary to the purpose of 202 and the legislative policy embodied in CPLR 202. For example, in GML, a legal malpractice action brought by Tennessee plaintiffs against New York defendants, this Court borrowed Tennessee’s statute of limitations but refused to borrow Tennessee’s toll suspending the statute of limitations for defendants absent from Tennessee. The 16 Court emphasized that while the New York defendants were indeed absent from Tennessee, they “were amenable to suit in New York for the entire period of Tennessee’s statute of limitations.” GML, 9 N.Y.3d at 951. Thus, borrowing Tennessee’s absent defendant toll “would cause the statute of limitations to be tolled indefinitely against the[] [New York] defendants”—an absurd result inconsistent with the New York legislature’s intent in enacting CPLR 202. Id.5 Respondents contend that GML simply held that “the borrowing statute required that New York’s shorter period” be applied. Opp’n Br. 30-31. But New York’s statute of limitations for legal malpractice claims (three years) is longer than Tennessee’s (one year). See GML, Inc. v. Cinque & Cinque, P.C., No. 106942/01, 2005 WL 5960011 (N.Y. Sup. Ct. 2005). And because plaintiffs’ claims were timely under New York’s longer statute of limitations, the only basis for dismissing plaintiffs’ claims as time barred was Tennessee’s shorter one-year 5 Like GML, this Court’s decision in Portfolio Recovery stands for the sensible proposition that New York courts may not borrow under CPLR 202 blindly or indiscriminately without regard to the purpose of CPLR 202 and the legislature’s intent. In Portfolio Recovery, the Court borrowed Delaware’s absent defendant toll along with its limitations period but only because, and to the extent that, such borrowing furthered the purpose of CPLR 202. Indeed, the Portfolio Recovery Court emphasized that borrowing Delaware’s absent defendant toll was “consistent with one of the key policies underlying CPLR 202, namely, to prevent forum shopping by nonresidents attempting to take advantage of a more favorable statute of limitations in this state.” Portfolio Recovery Assocs., LLC v. King, 14 N.Y.3d 410, 418 (2010) (citation omitted). As in GML, the defendant in Portfolio Recovery was a New York resident, but because the Delaware absent defendant toll, unlike the Tennessee toll at issue in GML, did not allow for the tolling in perpetuity of claims against non-residents, borrowing Delaware’s absent defendant toll was consistent with the anti-forum shopping purpose of 202. Id. at 417. 17 statute of limitations, free of any tolling.6 Thus, GML highlights an instance in which the Court borrowed a foreign statute of limitations but not a foreign tolling provision because also borrowing the foreign tolling provision would work an absurdity to CPLR 202 and contravene legislative intent.7 Finally, Respondents also suggest that other jurisdictions overwhelmingly adopt the view that borrowing statutes require borrowing the savings statute of the jurisdiction where the claims accrued. Opp’n Br. 33-35. This is patently untrue. See, e.g., Garcia v. Int’l Elevator Co., 358 F.3d 777, 780 (10th Cir. 2004) (holding that forum state’s savings statute, rather than foreign state’s savings statute, applied because “original filing” in forum state was timely); 6 The issue of the timeliness of Plaintiffs’ legal malpractice claims under New York’s longer, three-year statute of limitations was not even adjudicated on a dispositive motion in the trial court, as it presented at a minimum a triable issue of fact. “There is at least an issue of fact as to whether th[e] action is time barred under New York’s three-year statute of limitations,” which begins to run from the termination of the attorney-client relationship. GML., No. 106942/01, 2005 WL 5960011 at *3 & n.2 (Trial Court Order, Kapnick, J.). Plaintiffs filed suit on April 5, 2001 and alleged that “defendants continuously represented them until the end of April 1998,” a span of slightly less than three years. Id. at *1, *3 & n.2. 7 Indeed, this Court has never held that all foreign tolling rules must be borrowed along with a foreign limitations period under CPLR 202 and this issue was certainly not “well-settled by this Court in Smith Barney,” as Respondents claim. Opp’n Br. 18. Indeed, the Smith Barney Court never reached the issue of how to apply 202. Matter of Smith Barney, Harris Upham & Co. v. Luckie, 85 N.Y.2d 193, 207 (1995) (remanding for the Appellate Division to consider this issue in the first instance). In dicta, the Court merely referred the Appellate Division to a non-binding practice commentary, which predates GML by more than a decade and contains broad remarks about the need to borrow “all” tolling provisions under 202. Id. Respondents also contend, without explanation, that “[t]he principle” in Smith Barney was “recently reaffirmed in Portfolio Recovery Assoc., LLC v. King, 14 N.Y.3d 410, 416 (2010).” Opp’n Br. 18. But the Portfolio Recovery Court neither discussed nor cited Smith Barney. And this Court has never cited Smith Barney for the purported decades old “principle” that Respondents misleadingly attribute to Smith Barney. See Opp’n Br. 18. 18 Goldsmith v. Learjet, Inc., 917 P.2d 810, 811, 820 (Kan. 1996) (answering in the negative certified question of “[w]hether the Kansas borrowing statute . . . borrows the foreign state’s saving statute so as to preempt the Kansas saving statute”); McKinney v. Fairchild Int’l, Inc., 487 S.E.2d 913, 921 (W. Va. 1997) (noting that “[a] number of courts have adopted the position that once an action is filed timely, the operation of the borrowing statute ceases,” and citing cases). In any event, the non-New York cases cited by Respondents are not binding on this Court and certainly do not reflect this Court’s admonition that CPLR 205(a)’s “sound premise” and the “policy preference it embodies” should not be “subordinate[d].” Goldstein, 13 N.Y.3d at 521. III. NOREX’S FEDERAL ACTION WAS NOT ADJUDICATED ON THE MERITS Respondents’ argument that the 12(b)(6) dismissal of Norex’s federal action was on the merits for purposes of CPLR 205(a) disregards this Court’s holding in Carrick v. Central General Hospital, 51 N.Y.2d 242 (1980). See Opp’n Br. 35. In Carrick, the plaintiff’s wrongful death action was dismissed8 “solely for want of a duly appointed administrator.” 51 N.Y.2d at 246. Applying CPLR 205, 8 The trial court dismissed the wrongful death action pursuant to CPLR 3211(a)(7) for failure to state a claim. As Professor Siegel observes, “CPLR 3211(a)(7) is the counterpart of Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Siegel, N.Y. Prac. § 265 (5th ed.). Thus, it is of no moment that the dismissal of Norex’s federal action was re-characterized by the Second Circuit as a 12(b)(6) dismissal because Carrick made clear that even if the dismissal was for failure to state a claim, a court may not deprive a litigant of the benefit of 205(a) where the court did not pass on the substance of the dismissed claims. 19 this Court held that the dismissal was not “upon the merits,” even though the plaintiff’s claim was missing an “essential element.” Id. at 251-52. Under 205, the Court explained, “a suitor is entitled to have ‘one adjudication of the substance or merit of his cause where he has initiated a suit in time.’” Id. at 252 (quoting Buchholz v. U.S. Fire Ins. Co., 53 N.Y.S.2d 608 (1945)). Norex timely filed its federal RICO claims and supplemental non- federal claims in New York federal court. The district court dismissed Norex’s claims because it found, as a threshold matter of statutory construction, that the federal RICO statute did not have extraterritorial application, and it declined to exercise jurisdiction over the non-RICO supplemental claims.9 The Second Circuit affirmed based on an intervening change in federal law.10 Under this Court’s clear interpretation of CPLR 205 in Carrick, neither federal court reached the substance of Norex’s claims and the fact that the Second Circuit characterized its dismissal of the RICO claims as a 12(b)(6) dismissal does not alter the analysis. See Carrick, 9 The district court first dismissed Norex’s complaint on the basis of forum non conveniens, which the Second Circuit vacated and remanded. 10 The district court dismissed Norex’s action under Federal Rule of Civil Procedure 12(b)(1) while the Second Circuit dismissed Norex’s federal action pursuant to Federal Rule of Civil Procedure 12(b)(6). But the Second Circuit, like this Court, has made clear that dismissals for failure to state a claim are not necessarily on the merits. Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) (noting the “well settled meaning” of the phrase “adjudicated on the merits” is “a decision finally resolving the parties’ claims . . . based on the substance of the claim advanced” (emphasis added)); Criales v. Am. Airlines, Inc., 105 F.3d 93, 97 (2d Cir. 1997) (“[W]e would not permit the choice of labels to distort substance, especially where the consequence would be so drastic as to deprive a party of the opportunity to be heard.” (emphasis added)). 20 51 N.Y.2d at 252 (“[A] ‘final judgment upon the merits’ does not necessarily result every time a cause of action is dismissed for want of a formal, albeit essential, element of the claim.”). Norex must not be “deprive[d] . . . of the opportunity to be heard” merely because of the Second Circuit’s “choice of labels.” See Criales, 105 F.3d at 97.11 IV. NOREX’S CLAIMS ARE TIMELY UNDER 28 U.S.C. § 1367(D) Respondents contend erroneously that because § 1367(d) uses the word “dismissed,” the statute refers to the issuance of the initial appellate decision, and not the issuance of the appellate mandate, which purportedly places the filing of Norex’s state court action outside of the 30-day post-dismissal grace period of § 1367(d). Opp’n Br. 37-38. In doing so, Respondents incorrectly characterize the issuance of the appellate mandate as a “pure[ly] ministerial act.” (R. 255). But, the issuance of the mandate is an “event of considerable institutional significance.” United States v. Rivera, 844 F.2d 916, 921 (2d Cir. 1988). Until the mandate issues, a federal appellate court retains jurisdiction over the claims and can amend or alter its decision. As Professor Siegel cogently explains in his amicus brief, “in cases involving a federal appeal, until the federal appellate court issues its 11 Even if the Second Circuit’s dismissal of Norex’s RICO claim was on the merits (it was not), Norex would in no way be precluded from raising its unadjudicated supplemental non-federal claims in a subsequent action under New York law. See Browning Ave. Realty Corp. v. Rubin, 207 A.D.2d 263, 265 (1st Dep’t 1994) (“[R]es judicata will not bar a State action where it is clear that the pretrial dismissal of the Federal cause of action did not include adjudication of a pendent . . . claim on its merits.”) (citing McClearn v. Cowen & Co., 60 N.Y.2d 686 (1983)). 21 mandate, the case remains ‘pending’ and has not been ‘dismissed.’’” Amicus Curiae Br. of Siegel at 15. A. Section 1367(d) Tolled Norex’s Supplemental Claims While Pending in Federal Court and for an Additional 30 Days After the Federal Action’s Conclusion Section 1367(d) states that any supplemental claim “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.” 28 U.S.C. §1367(d). Respondents’ argument that Congress could have used the word “mandate” or “entry of judgment” instead of “dismissed” is entirely wide of the mark. Not all federal cases are appealed and if a case is not appealed, then a district court’s decision dismissing the case would be the measuring date for §1367(d) purposes. However, for cases that are appealed, like this one, the claims are dismissed within the meaning of §1367(d) upon the issuance of the mandate. This is because until the mandate issues, the appellate court’s decision is not final, the claims in the action have not been finally dismissed, and the appellate court retains jurisdiction to decide rehearing petitions or otherwise amend its opinion or judgment. See United States v. Zedner, 555 F.3d 68, 82-83 (2d Cir. 2008); see also Fed. R. App. P. 41 advisory committee’s note (1998 amendments) (“A court of appeals’ judgment or order is not final until issuance of the mandate; at that time the parties’ obligations become fixed.”). 22 Norex’s federal action was dismissed within the meaning of § 1367(d) by the issuance of the Second Circuit’s mandate in July 2011. This action was filed in state court in March 2011 before the issuance of the mandate. Indeed, the Second Circuit stayed issuance of the mandate, at Norex’s request, expressly so that Norex could timely re-file its supplemental claims in New York Supreme Court under “relevant ‘savings action statutes’” while it was pursuing certiorari to the U.S. Supreme Court. (R. 1304). In this case, the Second Circuit issued its opinion affirming the trial court’s decision on September 28, 2010, but subsequently amended its opinion on December 8, 2010. The Second Circuit was able to do so because the mandate had not yet issued. This is consistent with case law that holds that a federal appellate court can completely alter its decision at any time before the mandate issues. See Greenblatt v. N.Y. Sur. Co. 246 A.D.2d 385, 386 (1st Dep’t 1998) (citation omitted) (“[U]sually the issuance of a mandate by [a Federal Court of Appeals] means that the litigation has come to an end.”); Carver v. Lehman, 558 F.3d 869, 878 (9th Cir. 2009) (“No opinion of this circuit becomes final until the mandate issues[.]”). In addition, not only can an appellate panel alter its decision prior to issuance of the mandate, but any judge on the court of appeals may hold the mandate and request a vote for rehearing sua sponte. Therefore, until the mandate issues, the claims have not been dismissed and the appellate court’s decision is not 23 final.12 See Turner v. Kight, 406 Md. 167, 189 (2008) (holding that § 1367 suspends the statute of limitations until thirty days after the issuance of the mandate if appeal is taken as of right)13; Goldstein, 13 N.Y.3d at 522-23 (noting that claims are pending under § 1367(d) until the “federal action’s conclusion”). B. Norex’s Supplemental Claims Were Timely Filed Under the Plain Language of § 1367(d) Even assuming that § 1367(d) tolls the statute of limitations only through issuance of an initial appellate decision, as Respondents contend, and not through the issuance of the mandate, as Norex contends, Norex’s supplemental claims were still timely filed under the plain language of §1367(d). The statute states: “The period of limitations for any claim asserted under subsection (a) [i.e. any supplemental non-federal claim] . . . 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.” 28 U.S.C. § 1367(d) (emphases added). Under the plain language, “shall be tolled” means that the state limitations period is suspended —i.e., the clock is stopped and the time is not 12 Moreover, until the mandate issues, the district court does not have jurisdiction over the case. Zedner, 555 F.3d at 82 n.3 (explaining that a “district court lacks jurisdiction prior to the issuance of the mandate”). 13 See Amicus Curiae Br. of Siegel at 13 (“Case authority holds that where a federal district court’s dismissal order is appealed, § 1367(d) suspends the running of a state statute of limitations ‘until 30 days after . . . issuance of . . . a mandate affirming the dismissal of those claims by the District Court.’”) (emphasis added in brief) (quoting Turner, 406 Md. at 189). 24 counted—while the federal court is considering the claim and for thirty days after the claim is dismissed. Contrary to Respondents’ contention, this plain language interpretation of § 1367(d)—the “suspension” approach—has been adopted by the overwhelming majority of courts that have interpreted the statute, including the only federal appeals court to have addressed the issue, the U.S. Court of Appeals for the Sixth Circuit, and the highest courts of Minnesota and Maryland.14 By contrast, Respondents cite to only four cases that have purportedly rejected the suspension approach. Opp’n Br. 45 n.39.15 As a matter of statutory construction, as numerous courts have held, Section 1367(d) can be read only as suspending the limitations period during the pendency of the federal action. See Turner, 406 Md. at 180; see also In re Vertrue 14 See In re Vertrue Inc. Mktg. & Sales Prac. Litig., 719 F.3d 474, 481 (6th Cir. 2013); Goodman v. Best Buy, Inc., 777 N.W.2d 755, 759 (Minn. 2010); Turner, 406 Md. at 189; see also In re Vertrue Inc. Mktg. & Sales Prac. Litig., 712 F. Supp. 2d 703, 724 (N.D. Ohio 2010); City of L.A. v. County of Kern, 154 Cal. Rptr. 3d 122, 134 (Ct. App. 2013) (review granted); Pye v. NuAIRE, Inc., No. A12-0734, 2012 WL 6652618, at *3-4 (Minn. Ct. App. Dec. 24, 2012); Goodman v. Best Buy, Inc., 755 N.W.2d 354, 356 (Minn. Ct. App. 2008); Oleski v. Dep’t of Pub. Welfare, 822 A.2d 120, 126 (Pa. Commw. Ct. 2003); Bonifield v. County of Nevada, 114 Cal. Rptr. 2d 207, 211 (Ct. App. 2002). 15 Of these four cases, only one involved the highest court of a state—Weinrib v. Duncan, 962 So. 2d 167 (Ala. 2007). But the Weinrib court’s treatment of the tolling issue is dicta. The plaintiff filed suit in state court two days before the expiration of the state statute of limitations. The case was removed to the federal district court, which granted summary judgment in favor of the defendant on the federal claim and refused to exercise supplemental jurisdiction over the state claim. The plaintiff did not appeal; instead, one year later, she refiled suit in state court. As a result, her re-filed suit was untimely under any interpretation of § 1367(d)’s tolling effect. Moreover, Respondents note that a minority of attorneys general have criticized the “suspension” approach; conspicuously absent from this minority is the New York attorney general. See Opp’n Br. 45 n.39. 25 Mktg. & Sales Prac. Litig., 712 F. Supp. 2d 703, 724 (N.D. Ohio 2010) (“The suspension approach is the only approach that comports with the plain meaning of the statute. By essentially ‘stopping the clock’ during the pendency of the federal lawsuit, all claims receive a tolling benefit and the statute is uniformly applied.”). This is because the suspension approach is the only interpretation that gives meaning to all the words in the statute. Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) (holding that every word of a statute must be given effect). Under Respondents’ interpretation of the statute—that it merely extends an expired statute of limitations—the statute would apply only if the applicable limitations period actually expired during the pendency of the federal action.16 Tolling under § 1367(d), however, is not conditional. The statute states that the limitations period “shall be tolled,” 28 U.S.C. § 1367(d); it therefore requires tolling in every case.17 16 If Congress had wanted to simply extend the limitations period by a specific amount of time after dismissal, as Respondents urge here, it would have done so expressly, as it has in other statutes. See, e.g., 10 U.S.C. § 843(e) (“[T]he period of limitation . . . is extended to six months after the termination of hostilities as proclaimed by the President or by a joint resolution of Congress.”); 47 U.S.C. § 415(d) (stating that a “period of limitation shall be extended to include ninety days from the time such action is begun or such charges are collected by the carrier”); 49 U.S.C. § 11705(d) (“The limitation period . . . is extended for 6 months from the time written notice is given to the claimant . . . .”). 17 The Appellate Division erred in ruling to the contrary. See Amicus Curiae Br. of Siegel at 7 (“The First Department’s construction is implausible as a construction of the statutory text and is completely inconsistent with the statutory purpose.”). 26 Here, Norex initiated its federal action on February 26, 2002, scarcely a month after Respondents reduced Norex’s majority equity interest in the valuable Yugraneft oil field to 20%, the misappropriation of which forms the basis of Norex’s complaint. Because the federal action began just a few weeks into the running of any applicable limitations period, the balance of time “that remained when the clock stopped” on the applicable limitations period would be measured in months, if not years. Thus, regardless of whether the clock restarted in September 2010 (when the Second Circuit first issued its decision), December 2010 (when the Second Circuit issued its amended decision), or July 2011 (when the Second Circuit issued its mandate), Norex still had months left on the “clock” to re-file its supplemental claims in New York state court pursuant to §1367(d). C. Respondents’ Reliance on Inapposite Cases Is Unavailing Finally, Respondents rely on several inapposite cases in support of their erroneous contention that § 1367(d) does not apply to Norex’s supplemental claims. First, Respondents argue that, under Board of Regents of University of State of New York v. Tomanio, 446 U.S. 478, 491-92 (1980), § 1367(d) should not apply because the “law on limitations and tolling” is the “province” of state law. Opp’n Br. 47. But Tomanio has nothing to do with the application of § 1367(d). Indeed, Tomanio was decided several years before Congress enacted § 1367(d). 27 Moreover, the U.S. Supreme Court has unequivocally held that § 1367(d)’s tolling “must be applied by all state courts.” Jinks, 538 U.S. at 459. Second, Respondents contend that, under Raygor v. Regents of the University of Minnesota, 534 U.S. 533 (2002), § 1367(d) should not apply because that statute cannot “override” a state statute of limitations. Opp’n Br. 48. However, as set forth supra, there is no statute of limitations issue in this case because Norex’s federal action was timely filed under any applicable statute of limitations. In all events, Respondents mischaracterize Raygor. In Raygor, the U.S. Supreme Court held that under the Eleventh Amendment—which is indisputably not at issue here—plaintiffs cannot assert supplemental non-federal claims against non-consenting sovereign state defendants. See id. at 543-44. And because sovereign immunity bars a plaintiff from asserting such claims, they also cannot be tolled under § 1367(d). Id. Thus, Raygor has no application to a case where the defendant is not a sovereign state protected by the Eleventh Amendment. Third, Respondents argue erroneously that under Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) and Morrison v. National Australian Bank Ltd., 561 U.S. 247 (2010), § 1367(d) does not apply to toll foreign supplemental claims where, as allegedly is the case here, CPLR 202 imports a foreign country’s statute of limitations. Opp’n Br. 49-50. This is simply 28 incorrect.18 It is undisputed that, by its plain language, §1367(d) tolls “any claims asserted under subsection (a)” and §1367(a), in turn, provides that “the district courts have supplemental jurisdiction over all other claims that are so related to the claims in the action within such original jurisdiction.” 28 U.S.C. § 1367 (emphasis added). It is well-settled law that “all other claims” under § 1367(a) includes foreign law claims. See, e.g., Voda v. Cordis Corp., 476 F.3d 887, 894 (Fed. Cir. 2007) (§ 1367(a) permits federal courts to exercise jurisdiction over foreign claims); In re Air Crash Disaster Near Roselawn, Ind., 96 F.3d 932, 943 (7th Cir. 1996) (same); In re BP plc Sec. Litig., 843 F. Supp. 2d 712, 798-99 (S.D. Tex. 2012) (same); Rundquist v. Vapiano SE, 798 F. Supp. 2d 102, 131 (D.D.C. 2011) (same). Nowhere in § 1367(a)—the only provision that determines which claims can be asserted as supplemental, and thus which claims may be tolled by § 1367(d)—does the statute qualify supplemental claims as only state law claims. V. NOREX’S NEW YORK STATE LAW CLAIMS ARE TIMELY UNDER THE RELATION-BACK DOCTRINE Respondents spend several pages arguing that § 1367(d), even if applicable—which they dispute—would only toll the non-federal claims Norex asserted in federal court. Opp’n Br. 36-43. But that issue is not in dispute. See Opening Br. 13, 49-54. And precisely because the supplemental claims Norex 18 Neither Kiobel nor Morrison has anything to do with the application of §1367(d). Nor has any court, state or federal, ever held that § 1367(d) does not apply to toll foreign supplemental claims. 29 asserted in federal court were timely re-filed pursuant to § 1367(d), Norex properly amended its state court complaint—pursuant to CPLR 203(f) and the well- established relation-back doctrine—to add its New York state law claims, which arise out of the same transactions and occurrences as the supplemental claims.19 The proper application of the well-established relation-back doctrine in this case is straightforward. Pursuant to § 1367(d), Norex’s supplemental non- federal claims were timely filed in New York state court in March 2011. Because those claims were timely filed, under CPLR 203 and the relation-back doctrine,20 Norex properly amended its complaint as of right in June 2011 to include additional New York state law claims arising out of the same transaction or occurrence. See Opening Br. 26-27.21 19 While Respondents devote seven pages to arguing that § 1367(d) tolls only Norex’s supplemental non-federal claims, they spend just one paragraph addressing Norex’s relation- back argument. Compare Opp’n Br. 36-43, with Opp’n Br. 41. 20 Notably, in federal court, “[w]hatever may be the controlling body of limitations law, if that law affords a more forgiving principle of relation back than the one provided in this rule, it should be available to save the claim.” Fed. R. Civ. P. 15 advisory committee’s note (1991 amendments). Thus, a plaintiff will not be prejudiced by choosing to file supplemental non- federal claims in federal court, thereby promoting efficiency in the administration of justice. If the district court had chosen to retain jurisdiction over Norex’s non-federal supplemental claims, and Norex later sought to amend those claims to add its New York claims, New York’s relation- back doctrine would also have been available to Norex in federal court. Norex’s interpretation is thus consistent with the U.S. Supreme Court’s recognition that “the accident of a suit by a non- resident litigant in a federal court . . . should not lead to a substantially different result.” 21 Respondents’ citations to Williams v. State of New York, 235 A.D.2d 776, 777 (3d Dep’t 1997) and Bittner v. Cummings, 188 A.D.2d 504, 506 (2d Dep’t 1992) are inapposite. Opp’n Br. 42. In neither Williams nor Bittner was the plaintiff attempting to amend claims that had been timely filed in state court, as Norex is doing here. 30 The Northern District of Illinois’s decision in Brengettcy v. Horton is particularly instructive. No. 01 C 197, 2006 WL 1793570, at *10 (N.D. Ill. May 5, 2006). In that case, the court allowed the plaintiff to assert three new claims against defendants in an analogous factual situation. Like Norex, the plaintiff in Brengettcy had timely filed his complaint in federal court. Id. at *4. Then, after the federal action was dismissed, the plaintiff re-filed the action in state court, asserting the same supplemental non-federal claims that had been asserted in the federal action. Id. The court held that some of the plaintiff’s claims asserted in the federal action were saved by Illinois’ savings statute and by § 1367(d). Id. at *5, *9-10. When the plaintiff re-filed in state court, adding three new claims, the defendants moved to dismiss the three new claims as time barred. Significantly, the court held that the three new claims were not time barred because, under the “relation back” doctrine, the plaintiff was allowed to assert in an amended complaint new claims that arose out of the same transaction or occurrence as the previously filed claims that were saved from the dismissed federal action. Id. at *10. So too here, Norex’s supplemental non-federal claims that were asserted in federal court were saved and timely filed pursuant to § 1367(d). Norex was then entitled to amend its pleading in state court pursuant to CPLR 203(f) and the relation-back doctrine to assert new claims that arise out of the same 31 transactions and occurrences as Norex’s supplemental claims. Accordingly, all of Norex’s claims were timely filed in New York Supreme Court. CONCLUSION This Court should reverse the decision of the First Department and remand to the New York Supreme Court so that Norex can, at long last, proceed with discovery in pursuit of its meritorious legal claims. Dated: New York, New York January 13, 2014 SIMPSON THACHER & BARTLETT LLP By: /s/ Barry R. Ostrager__________________ Barry R. Ostrager Mary Kay Vyskocil Jonathan M. Weiss Hiral D. Mehta SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, New York 10017 Telephone: (212) 455-2000 bostrager@stblaw.com mvyskocil@stblaw.com hmehta@stblaw.com -and- 1999 Avenue of the Stars, 29th Floor Los Angeles, California 90067 jweiss@stblaw.com Attorneys for Plaintiff-Appellant Norex Petroleum Limited