Hello Statute of Limitations and Motion to Dismiss
Holiday? What holiday? Less than two weeks after the plaintiff’s filed an amended complaint in their civil suit, the defendants have entered a response. And not just any old reply; late last week they asked for the moon.
Sent to Judge Brook Hedge on October 4, was the Defendants’ Joint Motion to Dismiss Counts One, Three and Four, or in the Alternative, for Summary Judgment as to Counts One, Three and Four of Plaintiff’s Complaint.
The defendants are relying upon a long anticipated argument. In their twenty-page Memorandum of Points and Authorities , they lay it out: Kathy Wone’s original complaint failed to be filed within the one-year time limit required. Hedge should toss nearly every count, the defense argues, because the statute of limitations expired.
So when exactly did the clock start ticking on the civil case and how did the criminal case, and its glacial pace, impact the process?
The defense maintains the clock started when “the plaintiff has actual knowledge of a cause of action,” Robert’s murder. “Within hours of Mr. Wone’s death, Plaintiff had notice of the existence of its wrongful death claim,” a section of the filing begins.
Aggressive interrogations plus “the extensive and pervasive press coverage within the first weeks and months” after the murder, they say, made it clear the cause of action was obvious to all. A half dozen press clips are attached as well as potions of Eric Holder’s remarks at the one year anniversay press conference. A date by which the defense argues, the Estate of Robert Wone ran out of time.
The defense goes after the plaintiff’s contention that they were unable to file before the criminal indictment came down. Sections 50 -52 of the complaint states that since the defendants fraudlently concealed the facts, cleaned and staged the crime scene, destroyed evidence and delayed reporting, they were hamstrung:
51. As a result of Defendants’ fraudulent concealment, as well as the secrecy of the ongoing grand jury investigation into Robert Wone’s murder, Plaintiff did not gain knowledge until reviewing the MPD Affidavit, despite Plaintiff’s reasonable diligence, of the existence and the facts forming the basis of this wrongful death claim against the Defendants.
52. Plaintiff filed this action less than one month after learning from the MPD Affidavit of Plaintiff’s wrongful death claim against Defendants.
None of this is new, we saw the same passages, word for word, in the plaintiff’s initial complaint, and the limitations fight has been hanging over this case ever since the civil charges were first made.
Defense also argues plaintiffs can’t sustain claims for either spoliation or conspiracy, and although count 2, Negligence (failure to aid), has a three year statute, not one, “one cannot conspire to be negligent. Jurisdictions across the country require that a civil conspiracy claim be based on an intentional act, not negligence.” Some state law citations follow.
Judge Hedge set an August 1, 2011 deadline for decisions on dispositive motions. Question time: Can the defense have any more dispositives or is this it? What’s left to toss out or can they move to dismiss the same counts again but on different grounds? And does Hedge have to rule on this now or can she wait until next summer’s deadline?