-: SJC-13054 Shaw's Super Market Inc. v Margarita Melendez.
-: Okay, please help me with your last name.
-: [Attorney Coppice] Coppice.
-: Okay, great. Atty. Coppice, your turn.
-: Thank you.
May it please the court,
this matter is currently before the Court
calling a reservation and report from the single justice
of the Supreme Judicial Court for Suffolk County.
The plaintiff in this matter,
the plaintiff-appellee Melendez,
filed her complaint on September 24, 2020,
following an incident that occurred on September 3, 2017.
There is no dispute that the plaintiff suffered injury
at a Shaw's supermarket on September 3, 2017.
In response to that complaint,
in the Dudley District Court,
Shaw has filed a motion to dismiss personally.
Justice Lowy: We know the case.
-: Thank you.
-: So, section 12
of the 2nd order,
the 2nd COVID order,
deals with the statute of limitations.
And it talks about all civil statute of limitations
are tolled from March 17 through June 30, 2020.
Then there's other sections of the order.
And this is true of the 3rd and the 4th orders as well.
Like Court ordered deadlines
and expiring injunctions in similar orders.
And there, the language we use is different.
There we make sure we say
that expire anytime from
March 17 until June 30.
That language "that expires anytime from,"
definitely find its way into the statute of limitation
sections of the COVID-19 orders.
Isn't that a real problem?
-: I don't believe so your Honor,
because the statute of limitations is,
and of itself, a deadline.
A statutorily prescribed deadline.
And so, once the date for the approval
of a cause of action is established,
which here there is no dispute,
that was September 3, 2017,
that the three year deadline,
and I believe the Court's order is clear,
and it says all civil statutes of limitations.
And when you understand that the statute of limitations
is a statutorily prescribed deadline,
here, Chapter 260 Section 2A, states three years,
the deadline here was September 3, 2020.
It didn't fall within the deadlines expiring,
the statute of limitations expiring,
between Septe-, excuse me, March 17, 2020.
-: What is the plain
and ordinary meaning of tolled?
-: I believe you have to look at the term
"all" with "tolled" in this context.
The Court's order is clear that it says
all civil statute of limitations.
It does not say all civil claims, as the plaintiff argues.
And when you look at the word "all"
it refers to the civil statute of limitations,
meaning all the different types.
A 3-year tort, personal injuries-
-: What is the plain and ordinary meaning of the word tolled?
(Hon. Elspeth Cypher laughs)
-: Tolled would be for the expiration
of the statute of limitations.
That that deadline is tolled.
Man: It stopped. It stopped.
-: That particular statute of limitations
is paused
or tolled.
But that would be for those that fall within that deadline,
because the statute of limitations is a deadline.
And that deadline is what is tolled when you're
tolling the statute of limitations.
-: Do you have any case law that supports the proposition
that when a statute of limitations is paused,
it only applies to those statutes of limitations
that expire during that paused period?
-: The cases that I found reference only this
the expiration of the statute of limitations.
For example, when a statute of limitations is
tolled for equitable reasons,
the Courts look to the expiration
of the statute of limitations.
The cases, when again, with equitable tolling,
they look at the deadline.
It's always the deadline of the
statute of limitations that is expiring,
that is then tolled further.
Those are what the cases that I have found,
that I have found state.
-: I'm sorry, so I don't understand your answer
to my question.
Have you found any case law,
which says the statute of limitations is tolled
that there applies that term, that terminology to say,
only those statute of limitations that expired
during this paused period are extended?
-: I have not found them where they
toll it within the three years.
They tolled the deadlines at the expiration
of the statute of limitations.
The deadline on which the statute expired.
-: So you're not aware as counsel for Shaw's, of any,
agreement that Shaw's would have entered
to toll of statute of limitations during, say for example,
settlement negotiations that would have applied
in a way that the plaintiff is trying to apply it here?
-: Such agreements tend to come into place
when the statute of limitations is set to expire.
-: No, but let's just say Shaw's admits liability
and it's just trying to settle, right?
Like how much is this slip and fall going to be?
A 1000 dollars or a 100,000 dollars?
And they're just trying to come to a number.
And so the question is not liability, just the damages,
and they just need some time to discuss that number.
Are you telling me that Shaw's has not entered
into a tolling agreement for the statute of limitations
that pauses the expiration of the statute of limitations?
-: [Attorney Coppice] No, your honor.
-: Only at the end?
-: No, your honor, with respect to such a tolling agreement,
there would be a written agreement
tolling the expiration of the statute of limitations
to allow those discussions to take place.
-: And in that context,
the tolling of the statute of limitations is a hit of pause.
All the, all the negotiation periods don't count
against the statute of limitations, right?
-: But they apply to the deadline because-
-: Yeah, they extend the deadline
by however long the period is paused.
-: And it's expected that that deadline falls
within that negotiation.
-: Where is that part?
That's the problem I'm having with your argument.
Is that the expectation that the expiration happens
during the pause period? I've never-
(Atty. Caplette coughs)
-: I have to go and look at the,
you'd have to look at the facts and circumstances
of that particular negotiation.
In my experience,
when we've entered into tolling agreements,
the deadline is coming.
And so you look at the deadline and you agree to extend it.
And so here, the deadline for this statute of limitations,
on September 3, 2020, was so far outside
of the provision set by the Court
which was March 17, 2020 through June 30, 2020.
And so I don't think that
the statute of limitations was so close.
If, for example, there was an agreed upon tolling,
that, that would have been considered.
There was nothing that extended this statute of limitations.
And I believe it would have to be
a fact and circumstances type of analysis.
Whereas here, we're looking at the
interpretation of the Court's order.
And I believe that looking at
the language of this court's order,
describing all civil statute of limitations,
it would simply apply to the statute of limitations
that apply to the cases in
the types of civil statute of limitations,
applying to those cases set to expire
between March 17th through June 30th.
-: Well, why wouldn't the court have ordered that?
Why wouldn't it have said,
all statute of limitations set to expire
during the tolling period are tolled?
-: In this case, it sets the effect that it would
have the effect of toll statute of limitations,
well into the year 2026.
For example, a civil Breach of Contract that occurs
on January 1, 2020 is now tolled 106 days in the year 2026.
-: Right. Which is exactly what the plain meaning
of this order seems to suggest.
-: And the example that, that follows the order.
The example in Section 14 as well.
-: The purpose of the order,
that the orders all stayed the same purpose
at the very beginning, was this court intended to safeguard
the safety and public of the-
safety and welfare of the public
and the court personnel while increasing court business.
And so to do that, there has to be a stop to it.
And I would like to analogize the court's
Criminal statute of limitations language as well.
Because to take the same argument that the plaintiff makes,
and apply it to the Criminal statute of limitations,
it doesn't, it makes an unreasonable argument
for the Criminal statute of limitations as well.
-: But Criminal Law is a lot different than civil Law.
I mean, I would suggest you make a different analogy.
-: If I may, your honor, it was just with respect
to the language of the order
and the court's reference
in the orders with respect to-
-: No but, you know, in criminal context,
you've got all sorts of due process issues,
speedy trial issues.
I mean,
you can do what you want with your 15 minutes
but I think that analogizing a civil statute of limitations
to the due process issues and the speedy trial issues
that come up with criminal trial
is probably not your best argument.
-: I'm sorry to go back to my first question.
But do you have an explanation why,
when it comes to the other provisions,
dealing with statutes, court rules, standing orders,
guidelines,
injunctions,
that the order carefully says
"that expires any time from March 17th until June 30th?"
And that, that language is not
in the statute of limitation section.
Is there some reason?
Because we can't just assume that we decided to write it
in two sections or three sections and not in another.
-: Well, your honor, when taken together again,
the statute of limitations
is a statutorily prescribed deadline.
It is set by statute.
And so even if you look at,
and I'm gonna to refer to the 3rd order,
I believe it's section 14 where that deadline term is used,
a statutorily prescribed deadline,
such as the statute of limitations,
still falls within that time limitation
of March 17, 2020 through June 30, 2020.
And so again, it has to be read, I believe, together
because the civil statute of limitations
are prescribed deadlines.
They promote-
-: But you can have a more specific result
as it relates to the statute of limitations.
And you do for discovery disputes
or tracking orders in Superior Court.
-: And if this court so intended to add 106 days,
which I calculated between, on and between
March 17th through June 30th,
if this court so intended to add 106 days
to every statute of limitations it would have done so.
There are Statutes that allow for such additional time
to an expired statute of limitations.
And this court didn't do that,
with respect to the COVID-19 orders.
-: Well, only if we look at the order
and read it in the way that you suggest it should be read.
-: But I do believe that's the reasonable reading
of this clear language,
that all civil statute of limitations,
not all civil cases or civil claims,
all civil statute of limitations.
-: I mean, how would you write this,
"all civil claims are tolled."
Is that what you're suggesting?
-: The plaintiff argues, that all means all,
and that it means all civil cases.
That's on page 4 of the plaintiff's brief.
That is not what this (indistinct) states.
It states all-
-: Paragraph 14 or section 14
also has the word statutes in it too.
So it's not just rules and court orders, it's,
14 has the word statutes.
It just doesn't have the word statutes of limitations,
we carved out statute of limitations.
So I'm confused by, I still don't have your answer
to Justice Lowy's question.
What, why does the word statute of limitations
have a different language than this other provision,
which deals with statutes, court rules, and other things?
What's the explanation?
-: Because I believe the clear meaning
of a statute of limitations is a deadline that expires
in which a plaintiff can bring his or her claim.
And so here, that statute of limitations,
was in this case, September 3, 2020.
It did not fall within the time period
of the statute of limitations being tolled.
And again, the effect of that having, you know,
going into 6 years from now,
I do not believe that's the clear intent of these orders.
-: So your position is that the
statute of limitations is a date certain?
-: Once the stat, once the accrual date is determined,
which sometimes can be...
-: Right, but let's just say the accrual date is determined.
Your point is that the word statute of limitations
is a date certain?
-: Yes, your honor, from the day-
-: As opposed to a period during which a,
claim can be filed.
So the statute of limitations, for whatever,
let's say a contract action is 6 years.
Your position is that
there's a date certain,
tied to that statute of limitations
as opposed to during that 6 year period.
-: I do, your honor and that's because the courts,
including this court,
have referenced the statute of limitations deadline.
That the statute-
-: Alright, that's interesting,
because the deadline is a date certain, that's for sure.
The statute of limitations seems to me,
a period during which one may file a claim.
-: Right. And the-
-: Whereas the deadline is a date certain.
-: But I believe that the statute of limitations
is in of itself the setting of a deadline.
And so, when you look at that,
taken in the context of the court's order
-: And so when you pause the setting of the deadline,
just taking your logic here,
don't you extend the setting of that deadline then?
You just pause it during that period?
-: If it fell between March 17th and June 30th.
-: So you're reading all statute of limitations
deadlines are tolled.
That's what you're suggesting the orders say.
-: That is what I'm suggesting a clear reading
of the order is.
-: Well, counsel, can I ask you a different kind of
way into that point that Justice Wendlandt is making,
and that is, considering where this court was
when the orders came out and we were facing
the beginnings of this pandemic,
and many things were uncertain,
what do you think our intent was, in general?
What were we trying to achieve with these orders?
-: I believe the court was trying to protect
those statute of limitations
that fell within the governor's shutdown
and limited business operation orders.
And I agree, we were in an unprecedented situation,
the COVID-19 pandemic, we had never experienced that before
but the courts were open and-
-: Why is it limited to the governor's order?
-: And with respect to the, just in general,
the court's business during the COVID-19 order.
I believe it with the immediate response
was with respect to that.
But as of July 1st, in accordance with the orders,
the courts were open, they were open for business,
for emergency and non-emergency business,
so that pleadings could be filed
in hand, or by mail, or by drop box.
And so as of July 1st,
when the statute of limitations that had been tolled,
could renew and start again, or added on, as of July 1st,
and the pleadings could be filed.
But again, the September-
-: Your argument is that
the order was really just designed
around court business only.
And whether we were functional, not with regard to whether
the rest of society was functioning okay.
-: No, your honor. I believe that the means to file pleadings
were still available. The old-
-: Right, I understand that.
But just because the means to file pleadings were available,
was that the only thing we could consider?
Couldn't we consider whether people,
how the pandemic was affecting people's lives,
and how that might affect their ability to litigate?
-: Of course, your honor. But I believe that
if that was the case, that the civil statute of limitations,
had to be extended further,
this court would have extended it in its 4th order.
And it did not.
It said they were tolled during this time period.
And in the 4th order,
I believe it's even more specific,
that those deadlines,
the statute of limitations set to expire
between March 17th through June 30th,
were added on after or on July 1st.
And I believe that, that leads to the conclusion
that they had to expire, in order to be added on
as of July 1st.
-: So anybody have any further questions?
Great. Thank you.
-: [Attorney Coppice] Thank you.
-: Okay, Atty. Caplette.
Oh, we can't hear you.
I think you're on mute.
-: Sorry, I think I'm online now.
Can you hear me now?
-: Yes.
-: Good morning. May it please the court, as we've heard,
there are three distinct orders here
that we feel are applicable.
The first is the 2nd order,
dated approximately March 17th.
Then there's the 3rd order,
and there's the 4th order.
We would submit that they are consistent in one regard,
they talk about all statute of limitations for civil cases.
And they suspended, or I'm sorry,
toll that, on the first two orders.
And I'm sorry, at the end of the 2nd order,
the tolling is finished and the 3rd order references that.
But all three orders do one thing, they do not,
or they do several things.
One of the things is that,
they do not break out into different classes of cases,
such as the Shaw's would suggest,
that cases that whose statute of limitations
expired prior to June 30th, get one treatment,
and statutes limitations whose statute date
did not expire before June 30th,
have to hold on to their traditions.
-: But what about this council?
In the 2nd order
dealing with the statute of limitation,
the example given is an example that falls within,
the March 17th to September 3rd gate.
So, excuse me, June 30th date.
So the example is of a situation
where the statute of limitation expired within that period
as the defendant is suggesting.
And the 3rd order says, all statute limitations
that were tolled, will not be tolled further.
And the 3rd order repeals the 2nd order.
Is any of that a problem?
-: Well, two points:
One, is that you've used the word example
which is what's used in the order, and it's just that,
an example.
And it's hypothetical as to what date
this court decided to choose.
They happened to choose dates within it.
However, they did not specify that it applies only
to those dates they gave you general order
which we submit applies to any case.
There is no specification, no breakdown.
Again, we would submit that in both the,
all these orders that there is
a breakdown of types of cases.
Statute of limitations cases we submit are traded,
treated one way in cases involving,
orders and time limits
and whatever else the order provides for
are treated with different dates.
And what is the importance of that?
The importance is that as the reader,
as the, the litigant or counsel in the field
looks at it that they're being treated differently.
And that's a natural reaction.
They, it's important to understand that not only
is the intent of the court extremely important
but the impact upon the reader
when we received these orders. What do they mean?
How do we interpret them?
I think it's just as important.
And the plain English reading of these orders
is clear that it applies
to all civil statutes of limitations.
And it sounds like we're beating the same drum over
and over, but we can't change the language.
That's the language that was used.
-: There's at least one note that's different though.
I certainly agree with you as it relates
to the 2nd order.
My question, though, that you haven't answered is
that the 2nd order gets repealed, and the 3rd order
states that all statue of limitations that were tolled
from 3/17 until 6/30/2020 will not be tolled further.
Is that an issue that poses a problem
for the plaintiff?
-: We would submit no, because we use the formula
of the 2nd order.
Assuming we started on July 1st we still would've filed
within the time, allowed us by law.
In other words we added the dates that we had
as of July 1st.
And we filed it on September 24th, I believe, that would be
within the 170 days.
I think there's a little discussion whether it's 166 or 170,
but we would have filed it within 166 days
or 170 days of July 1st.
So it's a rather moot point because at that point,
once it's repealed, we would submit that the time limit,
the example period, if you will, exists.
We have the 170 days in which the file which it was done.
Continuing on the,
the breakdown of cases is,
the breakdown of cases
is consistent in the 2nd and 3rd orders.
And interestingly enough, in the 4th order,
although it only repeals, affects
the criminal statute of limitations by footnote,
it goes back to referring to the, again,
the civil statute of limitations.
And the paragraphing, the sentence structure
is that it separates that from the other claims
and it breaks it down into the different categories
of the same claims that were discussed
in the 2nd and 3rd order.
And we would submit that, again, there's a breakdown here,
done by the court intentionally,
that statute of limitations being treated in one fashion
and that the other claims injunctions,
court orders, deadlines, etc.
will be treated in another fashion.
And we suggest very strongly that the plain English reading
is that all is all as all.
Last, we would suggest to the court that the 4th order,
even if we assume the 2nd and 3rd are suspended,
overruled, written out, call it what you will,
the 4th order, again, references
the same statute of limitations period as the first two.
And that's where we are now.
The complaint was filed during the 3rd,
I'm sorry during the 4th order's period
which began in September 1st of 2020.
So we would suggest that the orders that would apply
would be the 4th, the 3rd, the 2nd,
in that order, because those are the time periods
of what we're using.
There's nothing much more we can add to this
beyond beating the drum that all is all is all.
And there was no differentiation
between the classes of cases, except as provided
by the court in the subsequent paragraphs
in the 2nd order, 3rd order,
and it continued on in the 4th order.
It's very hard to argue anything less that all is all.
I would just suggest to the court that this is a
an apical time period.
It's the only way to express it
in which a lot of things had to be rearranged.
And I can find no cases.
I submit, there are none
for a similar time period going back,
perhaps the last pop-up type event
was the Spanish flu 1919-1920.
I dive in, in not familiarity
with any cases from that time period have dealt
with "statute..." I'm sorry,
"statutes of limitations problem,"
or how they've treated it, if they treated it
back then a law.
So there is no precedent, if you will, how we deal
with apical events here in the Commonwealth.
I suggest that the court acted appropriately
in doing what it did by extending the time period.
We seen, we filed it well within a week,
simply to be the time period, the 170 days.
I believe it's actually, 24 days late or 23 days,
call it what you will, and that's what it was filed.
So that's what, that's why we are here today.
We suggest all is all.
The defendants would have you believe all means only a few
without specifying how they can define the field.
There was nothing in the court order
that says what the few will be for statute of limitations.
It does define it in other categories.
It does not, however, define a year.
I think that litigants council,
the public has a right to believe that all means all.
That would be our submission.
It's something where we have to had.
-: Okay. Thank you very much.