Norex Petroleum Limited, Appellant,v.Leonard Blavatnik, et al., Respondents.BriefN.Y.May 6, 2014 COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------: : NOREX PETROLEUM LTD., : APL-2013-00263 : New York County Clerk’s Plaintiff-Appellant, : Index No. 650591/11 : v. : : LEONARD BLAVATNIK et al., : : Defendants-Respondents. : : -------------------------------------------------------: AMICUS BRIEF OF PROFESSOR JONATHAN R. SIEGEL Jonathan R. Siegel Professor of Law George Washington University Law School 2000 H St. NW Washington, DC 20052 January 9, 2014 i TABLE OF CONTENTS STATEMENT OF INTEREST .................................................................................. 1 PRELIMINARY STATEMENT ............................................................................... 1 ARGUMENT ............................................................................................................. 4 I. Background: Supplemental Jurisdiction and Tolling . ................................... 4 II. The First Department Misconstrued the Phrase “unless State law provides for a longer tolling period” in § 1367(d) .......................... 7 A. The First Department’s Construction is an Implausible Reading of the Statutory Text .............................................................. 8 1. “State Law” ..................................................................................... 8 2. “Provides” ..................................................................................... 10 B. The First Department’s Construction Wholly Undermines the Purpose of § 1367(d) .................................................................... 10 III. Additional Points Concerning Section 1367(d) ............................................ 13 A. In Cases Involving an Appeal, Section 1367(d) Tolls a State Statute of Limitations Until the Federal Appellate Court Issues Its Mandate .............................................................................. 14 B. Once § 1367(d)’s Tolling Period Ends, a Plaintiff Has as Much Time to Refile in State Court as the Plaintiff Had Remaining When the Plaintiff Filed Suit in Federal Court ................ 16 C. Section 1367(d)’s Tolling Period is Unaffected by a Plaintiff’s Subjective Belief as to Whether the Statute Applies ......................... 20 D. Section 1367(d) Tolls Whatever Limitations Period is Imposed by State Law, Including a Period Borrowed from Another Jurisdiction .................................................................. 20 ii CONCLUSION ........................................................................................................ 22 TABLE OF AUTHORITIES Cases Bonifield v. County of Nevada, 94 Cal. App. 4th 298 (2001) ................................. 19 Finley v. United States, 490 U.S. 545, 547-48 (1989) ............................................... 4 Goodman v. Best Buy, Inc., 777 N.W.2d 755 (Minn. 2010).............................. 19, 20 Jinks v. Richland County, 538 U.S. 456 (2003) ....................................... 3, 11, 12, 21 In re M.B., 6 N.Y.3d 437, 846 N.E.2d 794 (2006) ............................................. 8, 10 Mercer v. Duke University, 401 F.3d 199 (4 th Cir. 2005) ....................................... 15 Natural Resources Defense Council, Inc. v. County of Los Angeles, 725 F.3d 1194 (9 th Cir. 2013) ................................................................................... 15 New York County Lawyers’ Ass’n v. Bloomberg, 19 N.Y.3d 712, 979 N.E.2d 1162 (2012) ............................................................................................. 8, 10 Okoro v. City of Oakland, 142 Cal. App. 4th 306 (2006)........................................ 14 Raygor v. Regents of University of Minnesota, 534 U.S. 533 (2002) .................... 13 Turner v. Kight, 406 Md. 167 (2008) ......................................................... 14, 17-21 United Mine Workers v. Gibbs, 383 U.S. 715 (1966) ................................................ 4 In re Vertrue Inc. Marketing and Sales Practices Litigation, 719 F.3d 474 (6 th Cir. 2013) .......................................................................................................... 19 iii Statutes and Rules 28 U.S.C. § 1367 ...............................................................................................passim § 1367(a) ................................................................................................................ 2, 5 § 1367(b) .................................................................................................................... 5 § 1367(c) ........................................................................................................... 2, 5, 6 § 1367(d) ...........................................................................................................passim New York CPLR 202 ..................................................................................... 9, 20-22 New York CPLR 205(a) .............................................................................. 2, 7, 9, 20 Fed. R. App. P. 41 ............................................................................................. 14, 15 Other Authorities Black’s Law Dictionary (9 th ed. 2009) .................................................................... 18 H.R. Rep. 734, 101 st Cong., 2d Sess. (1990) ........................................................... 12 RICHARD D. FREER, CIVIL PROCEDURE (2d ed. 2009) ................................................ 4 MOORE’S FEDERAL PRACTICE, § 341.12[3] (3d ed. 2013) ...................................... 15 David D. Siegel, Commentary on 1988 Revision, 28 U.S.C. § 1367 ...................... 16 STATEMENT OF INTEREST Jonathan R. Siegel is a tenured full Professor of Law at George Washington University Law School in Washington, D.C. Professor Siegel has taught Civil Procedure and Federal Courts, both of which cover the operation of 28 U.S.C. § 1367, for nearly 20 years, and he is contracted to publish a casebook in Federal Courts. This experience has given Professor Siegel an interest in the proper operation and construction of § 1367 and knowledge regarding § 1367 that would be of assistance to this Court. In addition, Professor Siegel is authorized to state that Thomas D. Rowe, Jr., Elvin R. Latty Professor of Law Emeritus, Duke University; Stephen B. Burbank, David Berger Professor for the Administration of Justice, University of Pennsylvania Law School; and Thomas M. Mengler, President, St. Mary’s University, who participated as amici in connection with the motion for leave to appeal, endorse this brief. PRELIMINARY STATEMENT This case concerns important questions about the operation of the federal supplemental jurisdiction statute, 28 U.S.C. § 1367. 1 Federal law provides federal district courts with “supplemental jurisdiction” over claims that form part of the same “case or controversy” as a claim giving rise 1 The case also raises other issues, on which amicus takes no position. 2 to original federal jurisdiction. § 1367(a). However, a federal district court may dismiss claims asserted under supplemental jurisdiction, without deciding their merits, if it has dismissed the claims over which it has original jurisdiction. § 1367(c). In such cases, the plaintiff will likely wish to refile the supplemental claims in state court, but the statute of limitations may have run. Section 1367 addresses this problem by providing that the limitations period for a claim asserted under supplemental jurisdiction “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.” § 1367(d). The main question presented is whether the statutory phrase, “unless State law provides for a longer tolling period,” applies when state law provides for a longer tolling period in the general run of cases, but not in the particular case before the court. The First Department held that in this case, § 1367(d)’s tolling period does not apply because New York’s CPLR 205(a) generally provides a longer tolling period, even though the First Department also held that CPLR 205(a) does not apply to this particular case. Under the First Department’s interpretation, § 1367(d) may provide no tolling period, even in a case where state law also provides no tolling period. The First Department’s construction of § 1367(d) cannot be correct. It wholly undermines the purpose of § 1367(d). The purpose of § 1367(d) is to 3 provide plaintiffs whose supplemental claims are dismissed in federal court with a minimum grace period within which to refile those claims in state court. It provides such parties with “the assurance that state-law claims asserted under § 1367(a) will not become time barred while pending in federal court.” Jinks v. Richland County, 538 U.S. 456, 464 (2003) (emphasis added). The First Department’s interpretation removes this vital assurance. It allows a party’s supplemental claims to become time barred while they are pending in federal court. It is paradoxical and wrong to hold that the minimum 30-day grace period provided by § 1367(d) can be cut off on the ground that state law “provides” a longer period, when state law does not actually provide a longer period in the particular case. The matter is an important one. Parties determining where to bring suit need to know, for planning purposes, whether suing in federal court entails the risk of having the statute of limitations run on their supplemental claims. Unless they can be assured that it does not, they may be compelled to bring duplicative lawsuits or to split their claims among multiple lawsuits. Such duplication of effort will disserve the goals of judicial economy, convenience, and fairness. The First Department’s interpretation of 28 U.S.C. § 1367(d) throws this issue into a state of confusion for plaintiffs contemplating suit in New York. This Court should reverse the First Department’s ruling. 4 ARGUMENT I. Background: Supplemental Jurisdiction and Tolling. A single transaction or occurrence may give rise to multiple legal claims. It has long been the policy of court systems throughout the nation to encourage, or at least to permit, the joinder of all such claims into a single lawsuit. United Mine Workers v. Gibbs, 383 U.S. 715, 724 (1966); RICHARD D. FREER, CIVIL PROCEDURE 609-10 (2d ed. 2009). This policy promotes “judicial economy, convenience and fairness to litigants.” 383 U.S. at 726. It is more economical and convenient to have one lawsuit instead of two over the same set of facts. Consolidation of claims also promotes fairness by reducing the possibility of inconsistent results. FREER, supra, at 610. When a transaction or occurrence gives rise to multiple claims, it may happen that some of the claims give rise to federal jurisdiction and some do not. Because federal courts are courts of limited jurisdiction, such claims can be joined together in a single federal lawsuit only if there is some basis for federal jurisdiction over all the claims. E.g., Finley v. United States, 490 U.S. 545, 547-48 (1989). For decades, this issue was handled by judicial doctrines allowing for “pendent” or “ancillary” jurisdiction over claims arising out of a common nucleus of operative fact with claims within the federal jurisdiction. See, e.g., Gibbs, 5 supra. In 1990, Congress addressed the problem by statute. Congress passed 28 U.S.C. § 1367, which created the new designation, “supplemental jurisdiction.” Section 1367 provides that: . . . [I]n 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. § 1367(a). This statutory provision generally permits a federal court to hear all claims arising out of single transaction or occurrence, provided at least one such claim gives rise to federal jurisdiction. 2 It thereby promotes judicial economy, convenience, and fairness by permitting parties in federal court to join together all claims arising from a common nucleus of operative fact. However, § 1367 provides a federal district court with some discretion regarding claims filed pursuant to supplemental jurisdiction. A district court may decline to hear such claims under certain circumstances. See § 1367(c). Of particular relevance to this case, § 1367(c)(3) authorizes a district court to decline to exercise supplemental jurisdiction if it “has dismissed all claims over which it has original jurisdiction.” This provision gives rise to the following potential problem: a party may bring a lawsuit in federal district court that combines multiple claims arising out of 2 Section 1367(b) creates some exceptions, not relevant to the present case, where this principle may not apply in a diversity case. 6 a single incident, some of which are within the original federal jurisdiction and some within the supplemental jurisdiction. The federal district court may dismiss all the claims over which it has original jurisdiction-because, for example, it grants summary judgment to the defendant on those claims-and it may then dismiss the plaintiff’s supplemental claims pursuant to § 1367(c) without resolving those claims on their merits. In such a case, the plaintiff would likely wish to refile the supplemental claims in state court. However, the statute of limitations on those claims might have run during the pendency of the federal district court’s proceedings, even though the claims were timely when the federal suit was originally filed. Section 1367(d) addresses this potential problem. It provides: The period of limitations for any claim asserted 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. By providing this tolling period, § 1367(d) allows a plaintiff in federal court to assert all claims arising out of a single incident in a single federal lawsuit with the confidence that, if the supplemental claims are dismissed, the plaintiff will be able to refile those claims in state court without being barred by the statute of limitations. 7 II. The First Department Misconstrued the Phrase “unless State law provides for a longer tolling period” in § 1367(d). The main question presented is the meaning of the phrase “unless State law provides for a longer tolling period” within § 1367(d). The First Department held that because New York’s CPLR 205(a) generally provides a plaintiff whose action is dismissed (other than for specified reasons) with six months to refile, this case falls within the exception to § 1367(d) for cases where “State law provides for a longer tolling period.” However, the First Department also held that CPLR 205(a)’s six-month tolling period does not apply to this case because New York law borrows Canada’s limitation period. Thus, the First Department held that § 1367(d) does not apply because “State law provides for a longer tolling period”- even though it also held that state law does not, in fact, provide for a longer tolling period in this case. The question, therefore, is whether the statutory phrase “unless State law provides for a longer tolling period” applies whenever state law provides for a longer tolling period in the general run of cases, or whether it applies only when state law provides a longer tolling period in the particular case before the court. The First Department adopted the former construction. But the latter is plainly correct. The First Department’s construction is implausible as a construction of the statutory text and is completely inconsistent with the statutory purpose. 8 A. The First Department’s Construction is an Implausible Reading of the Statutory Text. In construing a statute, a court begins by considering the statutory text. E.g., New York County Lawyers’ Ass’n v. Bloomberg, 19 N.Y.3d 712, 721, 979 N.E.2d 1162, 1167 (2012); In re M.B., 6 N.Y.3d 437, 447, 846 N.E.2d 794, 800-01 (2006). The First Department’s construction is an implausible reading of the text of § 1367(d). It misconstrues two terms in the statute. 1. “State law” Section 1367(d)’s tolling provision applies “unless State law provides for a longer tolling period.” § 1367(d). Therefore, in applying § 1367(d), a court must determine which law is the “State law” to which the statute refers. This determination can only be made with respect to a particular case. The “State law” to which § 1367(d) refers can only be state law that applies to the particular case before the court. This must be so, because a court attempting to identify the “State law” mentioned in § 1367(d) must first determine which State’s law to consider, and this determination can only be made with reference to the particular case before the court. For example, in this case, because the plaintiff refiled its supplemental claims in state court in New York, everyone would agree that the “State law” referenced in § 1367(d) is the state law of New York. But how does one know this? The point is not expressly stated in § 1367(d)’s text-the statute refers 9 simply to “State law,” not to “the forum State’s law.” The answer is that one knows that the “State law” in question must be the state law of New York because the phrase “State law” is necessarily limited to the applicable state law-the state law that applies to this case, not to some other case. 3 Otherwise one would reach the absurd conclusion that the “State law” to which § 1367(d) refers might be the law of any state. This simple point shows that the determination of which law is the “State law” mentioned in § 1367(d) can only be made with reference to the particular case before the court. The First Department erred in interpreting “State law” to include state law that does not apply to the particular case. Only state law that actually applies to the case at hand is the “State law” mentioned in § 1367(d). 4 3 The conflict-of-laws principles of the state in which the suit is filed might ultimately lead the court to consider the law of some other state. See, e.g., CPLR 202. That is, the “State law” to which § 1367(d) refers is the “whole law” of the forum state, including its conflict-of- laws principles, and not only the forum state’s “internal law.” But there can be no doubt that the “State law” referred to in § 1367(d) is, initially, the law of the forum state. 4 Indeed, if one accepted the First Department’s interpretation, under which the “State law” referenced in § 1367(d) is not limited to state law that applies to the particular case before the court, one would have to reach the absurd conclusion that § 1367(d) never provides any tolling period for plaintiffs refiling supplemental claims, because New York’s CPLR 205(a) is always a “State law” that “provides for a longer tolling period.” Even if a plaintiff whose case was dismissed in federal court refiled supplemental claims in state court in Alaska, under the First Department’s interpretation it would be true that “State law provides for a longer tolling period,” because the phrase “State law” would not be limited to state law that applies to the particular case before the court. Without such a limit, the “State law” referenced in § 1367(d) could always include New York’s CPLR 205(a). 10 b. “Provides” The First Department’s construction is also an implausible construction of the word “provides” in § 1367(d). A state law cannot be said to “provide[]” a longer tolling period if it does not apply to the case before the court. Certainly, if a New York statute allowed a one-year tolling period, but only for probate cases, no one would suggest in this case that state law “provides” a longer tolling period than § 1367(d). For these two reasons, the First Department’s construction is highly implausible simply on the basis of the text of § 1367(d). B. The First Department’s Construction Wholly Undermines the Purpose of § 1367(d). Moreover, even if the First Department’s construction of § 1367(d) could be reconciled with the statutory text, it cannot be the correct construction because it would wholly undermine the purpose of the statute. Consideration of the statutory purpose is vital to proper statutory interpretation, because the ultimate goal of a court in construing a statute is to effectuate the intent of the legislature. New York County Lawyers’ Ass’n, 19 N.Y.3d at 721, 979 N.E.2d at 1167; In re M.B., 6 N.Y.3d at 447, 846 N.E.2d at 800-01. As described in Part I above, § 1367(d) is designed to ensure that a plaintiff whose supplemental claims are dismissed in federal court has a minimum grace period within which to refile them in state court. The statute thereby serves the 11 important purpose of allowing a plaintiff who has a mixture of federal and other claims against a potential defendant, and who is deciding where to sue, to make clear planning decisions. Section 1367(d) allows such a plaintiff to bring all the claims together in federal court with the confidence that the statute of limitations will not run while the federal case is pending. Section 1367(d) guarantees that the plaintiff will have at least 30 days within which to refile the supplemental claims in state court if they are dismissed in federal court. This purpose of § 1367(d) is evident from the text of the statute, and it was confirmed by the U.S. Supreme Court in Jinks v. Richland County, 538 U.S. 456 (2003). In that case, the Supreme Court held that § 1367(d) is a valid exercise of Congress’s powers and is binding on the states. Id. at 461-65. In its opinion, the Court observed that § 1367(d) is “conducive to the administration of justice” because it eliminates what would otherwise be a “serious impediment” to access to federal court for plaintiffs who have a combination of state and federal claims arising from a common nucleus of operative fact. Id. at 463. Prior to the enactment of § 1367(d), the Court observed, such plaintiffs would have to choose among the “unattractive options” of filing in federal court, thereby running the risk that the court might dismiss their state-law claims after the limitations period had expired; filing in state court, thereby losing the right to a federal forum; or filing in both courts, thereby running up the litigation costs. Id. Section 1367(d), the Court 12 said, “replaces this selection of inadequate choices with the assurance that state- law claims asserted under § 1367(a) will not become time barred while pending in federal court.” Id. at 463-64 (emphasis added). 5 Section 1367(d) cannot serve this purpose under the First Department’s reading. Indeed, the First Department’s reading wholly undermines the purpose of § 1367(d). If the First Department were correct, § 1367(d) would not provide plaintiffs with the “assurance” that they could bring all their claims together in federal court without risking a statute of limitations problem for their supplemental claims. Plaintiffs deciding where to sue would have to consider the possibility that a state law that generally provides a longer tolling period than § 1367(d) might cut off their right to refile under § 1367(d) even though that state law does not apply to their particular case. Such plaintiffs would be thrown back on the “unattractive options” that the Supreme Court held that it was the purpose of § 1367(d) to avoid. The predictable result of the First Department’s interpretation would be more duplicative filings by cautious plaintiffs seeking to assure their right to sue, which would again undermine the purposes of § 1367(d). For these reasons, the correct construction of § 1367(d) is that the phrase “unless State law provides for a longer tolling period” applies only where state law 5 See also H.R. Rep. 734, 101 st Cong., 2d Sess. (1990) at 30 (“The purpose [of § 1367(d)] is to prevent the loss of claims to statutes of limitations where state law might fail to toll the running of the period of limitations while a supplemental claim was pending in federal court.”). 13 provides a longer tolling period in the particular case. A state law that applies only in other cases is not a “State law” that “provides” a longer tolling period within the meaning of § 1367(d). Where state law does provide for a longer tolling period in the particular case, Congress wished plaintiffs to have the advantage of it-Congress did not wish § 1367(d) to shorten the time that plaintiffs would have to refile. That is why the phrase “unless State law provides for a longer tolling period” appears in § 1367(d). That phrase could not have been intended to deprive plaintiffs of the minimum period of 30 days that § 1367(d) gives them to refile. 6 III. Additional Points Concerning Section 1367(d). Part II covers the main point that amicus desires to address. However, the case also presents some additional questions regarding § 1367(d) that the Court might need to reach. 6 Defendants-Respondents [hereinafter “Defendants”] rely on the Supreme Court’s decision in Raygor v. Regents of University of Minnesota, 534 U.S. 533 (2002). Joint Brief for Defendants- Respondents [hereinafter “Defendants’ Br.”] at 46 n.41, 48. While Raygor did involve § 1367(d), the Court’s opinion makes clear that the case turned on special considerations of state sovereign immunity applicable only when the defendant is a state or a state agency. See 534 U.S. at 547 (“We express no view on the application or constitutionality of § 1367(d) when . . . a defendant is not a State.”). Raygor is therefore not relevant to this case, where the defendants are private parties and do not enjoy state sovereign immunity. 14 A. In Cases Involving a Federal Appeal, Section 1367(d) Tolls a State Statute of Limitations Until the Federal Appellate Court Issues Its Mandate. Assuming § 1367(d)’s tolling period applies, it may be necessary to determine the period during which the statute tolls a statute of limitations. Section 1367(d) provides that the limitations period for a covered claim shall be tolled “while the claim is pending and for a period of 30 days after it is dismissed . . . .” This Court may therefore need to determine the last date on which the plaintiff’s nonfederal claims were “pending” in federal court. 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.” Turner v. Kight, 406 Md. 167, 189 (2008) (emphasis added); see also Okoro v. City of Oakland, 142 Cal. App. 4th 306, 312 (2006) (holding that for purposes of § 1367(d) a federal case “remains pending through the appellate process”). 7 A federal case does not cease to be “pending” within the meaning of § 1367(d) simply because the federal court of appeals has issued its opinion, a step that typically precedes the issuance of the court’s mandate. See Fed. R. App. P. 41. 7 The second ellipsis in the quotation from Turner v. Kight omits the words “an order of the U.S. Court of Appeals dismissing the appeal or.” In this case, the plaintiff’s appeal to the Second Circuit was not dismissed (rather, the appeal led to an affirmance of the district court’s decision), so the omitted phrase does not apply. 15 Defendants argue that the case ceased to be “pending” when the Second Circuit issued its opinion in September 2010, which they refer to as the court’s “dismissal order.” Defendants’ Br. at 5, 37. However, Defendants cite no authority for this proposition. The case authority cited above interprets the 30-day time period in § 1367(d) to start only from the issuance of the federal appellate court’s mandate. Moreover, even considered apart from existing case authority, Defendants’ argument from the statutory text is not persuasive. The tolling period provided by § 1367(d) continues while the case remains “pending” and for 30 days after it is “dismissed.” In federal appellate practice, a case remains pending until the court of appeals issues its mandate. An appellate opinion is simply not a “dismissal order,” as the Defendants would have it. As the U.S. Court of Appeals for the Ninth Circuit recently remarked: “No opinion of this circuit becomes final until the mandate issues[.]” Carver v. Lehman, 558 F.3d 869, 878 (9th Cir.2009); see also Fed. R. App. P. 41(c), 1998 Adv. Comm. Note (“A court of appeals’ judgment or order is not final until issuance of the mandate[.]”) Natural Resources Defense Council, Inc. v. County of Los Angeles, 725 F.3d 1194, 1203 (9 th Cir. 2013); see also Mercer v. Duke University, 401 F.3d 199, 212 n.7 (4 th Cir. 2005); MOORE’S FEDERAL PRACTICE, § 341.12[3] (3d ed. 2013) (“Until issuance of the mandate, control over the matter lies with the circuit court.”). 16 Hence, in cases involving a federal appeal, until the federal appellate court issues its mandate, the case remains “pending” and has not been “dismissed.” Thus, the language of § 1367(d), like the decided case authority, suggests that the 30-day time period does not start until the federal appellate court issues its mandate. 8 B. Once § 1367(d)’s Tolling Period Ends, a Plaintiff Has as Much Time to Refile in State Court as the Plaintiff Had Remaining When the Plaintiff Filed Suit in Federal Court. If the Court agrees with the point made in the previous section, it will not need to determine exactly how much time § 1367(d) provides a plaintiff to refile claims in state court after the plaintiff’s federal case is dismissed. If this Court agrees that the plaintiff’s claims were “pending” in federal court until the federal court of appeals issued its mandate, then the plaintiff undoubtedly refiled in state court within the time provided by § 1367(d). If, however, the Court disagrees with the previous section, then it might need to determine how much time § 1367(d) 8 Defendants briefly suggest the possibility that the 30-day period should be measured from the dismissal order entered by the federal district court and should be unaffected by the appeal. Again, they cite no case authority for this proposition, and the cases cited in the text above reject it. Defendants do cite, from the commentary on § 1367 by Professor David D. Siegel (who is no relation to the present amicus, Professor Jonathan R. Siegel), the statement that “[T]he dismissal moment should be taken to be the moment of dismissal in the district court.” Defendants Br. at 44 n.38. However, the full context of Professor Siegel’s commentary makes clear that this statement was not intended as an interpretation of § 1367(d) but rather as cautionary advice to plaintiffs’ counsel for use in the early days of § 1367’s existence. Professor Siegel went on to say, “This seems to be the safest course until there is a definitive federal ruling about whether the 30-day period may be measured from an appellate determination.” Prof. David D. Siegel, Commentary on 1988 Revision, 28 U.S.C. § 1367, at 767. 17 provides a plaintiff to refile claims in state court after the plaintiff’s federal case is dismissed. There is a division of authority on this question, and the different possibilities may best be explained with an example. Imagine that a plaintiff’s state-law claim accrues on June 1, 2014 and has a three-year statute of limitations. If the plaintiff files suit in federal court on that claim plus a related federal claim on June 1, 2016 (two years into the three-year state statute of limitations), but the federal case is dismissed without decision on the state-law claim on December 1, 2016 (six months later), how much time does § 1367(d) give the plaintiff to refile in state court? Three approaches are possible. The plaintiff might have 30 days to refile (so that in this example the plaintiff would need to refile by December 31, 2016); 30 days or such time as remains under state law when the plaintiff’s federal case is dismissed, whichever is greater (which in this case would give the plaintiff six more months, until June 1, 2017); or 30 days plus whatever time remained in the statute of limitations when the plaintiff filed in federal court (so that the plaintiff in this example would have until December 31, 2017). The decided cases do not provide a uniform approach. See Turner v. Kight, 406 Md. 167, 176-182 (2008) (thoughtfully collecting cases addressing these various approaches). 18 Although the cases are divided, the best answer is the last-that the plaintiff has 30 days from the date on which the federal case ceases to be pending, plus whatever time remained in the state statute of limitations when the plaintiff filed in federal court. This result follows from the ordinary meaning of § 1367(d)’s instruction that the limitations period for a claim shall be “tolled” while the claim is pending and for 30 days thereafter. To “toll” a statute of limitations means “to stop the running of” the statute. Black’s Law Dictionary 1625 (9 th ed. 2009). It follows that when the tolling period ends, the statute of limitations clock starts running again from where it was when the tolling period began. The highest court of Maryland adopted this approach in Turner v. Kight, supra. The court observed that this approach comports with “the more commonly applied conception of tolling.” 406 Md. At 181. The court also pointed out that if § 1367(d) were interpreted to provide the plaintiff only with 30 days or such time as remains under state law when the plaintiff’s federal case is dismissed, whichever is greater (the second approach suggested above), then § 1367(d) would have no effect in cases, such as the example given above, where the plaintiff still has time remaining in the state statute of limitations when the plaintiff’s federal case is dismissed. In such cases, the plaintiff would simply have to refile the state claim within the state statute of limitations, which would have continued to run while the claim was pending in federal court, unaffected by § 1367(d). A construction that 19 would give § 1367(d) no effect in such cases seems inconsistent with § 1367(d)’s instruction that the limitations period for a claim “shall be tolled” while the claim is pending in federal court. See 406 Md. at 179-80. The statutory text therefore suggests the “suspension-of-the-clock” approach, under which the state limitations period is suspended while the state-law claim is pending in federal court and restarts, from where it was, 30 days thereafter. Id.; accord In re Vertrue Inc. Marketing and Sales Practices Litigation, 719 F.3d 474, 481 (6 th Cir. 2013); Goodman v. Best Buy, Inc., 777 N.W.2d 755 (Minn. 2010); Bonifield v. County of Nevada, 94 Cal. App. 4th 298 (2001). It is true, as courts have recognized, that this interpretation of § 1367(d) is not essential to fulfilling the statute’s purpose of ensuring that the statute of limitations does not expire on a plaintiff’s state-law claim while the claim is pending in federal court. That purpose could be fulfilled by any of the interpretations suggested above. See 406 Md. at 181; 777 N.W.2d at 761. However, Congress did not merely enact a purpose; it chose a particular mechanism, indicated by the text of § 1367(d), for implementing its purpose. There is nothing in the legislative history of the statute to suggest that Congress intended any other mechanism besides the one indicated by the text of § 1367(d), and a court should not depart from the mechanism indicated by the statutory text 20 simply because the court might prefer a different mechanism as a matter of policy. See 406 Md. at 181-82; 777 N.W.2d at 761. Therefore, the Court, if it reaches this question, should adopt the “suspension-of-the-clock” interpretation of § 1367(d). Again, the Court will not need to reach this question if it agrees with the interpretation of “pending” discussed in the previous section. C. Section 1367(d)’s Tolling Period is Unaffected by a Plaintiff’s Subjective Belief as to Whether the Statute Applies. Defendants argue that the plaintiff’s actions following the issuance of the Second Circuit’s opinion in 2010 demonstrate that the plaintiff itself believed that the applicable time period for it to refile in state court was governed by CPLR 205(a), not by 28 U.S.C. § 1367(d). Defendants’ Br. at 14, 37-38. Assuming arguendo that this is true, it is irrelevant. A statute of limitations is unaffected by a plaintiff’s subjective beliefs about its application. If a plaintiff, racing to meet what it believed was a two-year statute of limitations, missed the period by a day, the plaintiff’s belief that it was out of time would be irrelevant if the applicable period was in fact three years, not two. D. Section 1367(d) Tolls Whatever Limitations Period is Imposed by State Law, Including a Period Borrowed from Another Jurisdiction. Defendants argue that § 1367(d) “does not . . . override the operation of New York law” and cannot interfere with New York CPLR 202’s borrowing of a 21 foreign limitations period. Defendant’s Br. at 46, 46-50. This argument is incorrect. First of all, § 1367(d) certainly does override the operation of state law-that is its entire purpose, and that purpose is a permissible one under the U.S. Constitution. See Jinks, 538 U.S. at 461-465 (upholding Congress’s power to enact § 1367(d), even though the statute “prescribe[s] the alteration of a state-law limitations period”); Turner, 406 Md. at 182 n.8 (“§ 1367(d) … serve[s] to ‘trump’ State statutes of limitation”). Second, § 1367(d) states without qualification that it tolls “[t]he period of limitations” for a covered claim. § 1367(d). The statute therefore tolls that period however it might be calculated, including by borrowing a limitations period from another jurisdiction. If that were not so, § 1367(d) could not fulfill its purpose, for all the reasons explained in Part II(B)-it could not provide plaintiffs with the assurance that time would not run on their nonfederal claims asserted as part of a federal case. Defendants contend that “nothing in Section 1367(d) was intended to override the operation of state borrowing statute regimes.” Defendants’ Br. at 46. In their opposition to the motion for leave to appeal, Defendants argued similarly that § 1367(d) could not be allowed to “frustrate” CPLR 202. Joint Opposition to Motion for Leave to Appeal at 27, 27-29. But § 1367(d) does not “frustrate” a 22 borrowing statute such as New York’s CPLR 202. The borrowing statute has its full effect in determining what period of limitations applies as a matter of state law. Section 1367(d) then tolls that period. Thus, in this case, CPLR 202, assuming it applies, determined the period within which the plaintiff was originally required to sue. But § 1367(d) then tolled that period. Finally, Defendants, noting the phrase “State law” in § 1367(d), argue that § 1367(d) cannot toll a foreign statute of limitations that does not derive from any U.S. State. Defendants Br. at 49. But this is merely a confusion. The phrase “State law” occurs in the part of § 1367(d) that determines when § 1367(d)’s tolling provision does not apply (it does not apply when “State law provides for a longer tolling period”). The limitations period that is tolled when § 1367(d)’s tolling provision does apply is described simply as “[t]he period of limitations for any [covered] claim.” § 1367(d). Therefore, § 1367(d) tolls whatever limitations period applies to a covered claim, including one borrowed from foreign law. 9 CONCLUSION Section 1367(d) plays an important role in the federal system. It promotes judicial economy, convenience, and fairness by encouraging and allowing plaintiffs to file all claims arising out of a single transaction or occurrence together 9 In addition, it is, in any event, far from clear that application of § 1367(d)’s tolling provision to this case has the effect of tolling a “foreign” limitations period, as opposed to a period determined by New York law, including New York’s CPLR 202. 23 in a single lawsuit, instead of filing duplicative lawsuits or splitting such claims among multiple lawsuits. It also permits plaintiffs to make important planning decisions with confidence. Section 1367(d) can fulfill these important purposes only if it is interpreted correctly. The First Department’s construction of § 1367(d) undermines its purposes. It will cause plaintiffs to be uncertain as to whether they can bring all claims arising out of a single transaction together in federal court, or whether doing so will run the risk of losing supplemental claims on limitations grounds. Such plaintiffs will likely have to file duplicative, protective lawsuits, which will disserve the goals of judicial economy, convenience, and fairness. No court other than the First Department, insofar as amicus is aware, has ever held that § 1367(d) can fail to provide plaintiffs with a minimum period of 30 days in which to refile, on the ground that a state statute, which does not apply in the particular case, would provide a longer period in other cases. This Court should reverse the ruling of the First Department.