By: Brian Condon
SEMPLE FARRINGTON & EVERALL
Colorado attorneys who litigate state claims in federal court pursuant to the federal supplemental jurisdiction statute should beware: the rules have changed.
Pursuant to 28 U.S. Code, Section 1367, federal courts may exercise supplemental jurisdiction over state law claims when they are so related to the federal claims that they form part of the same case or controversy. Thus, for example, a municipal employee who has been terminated from his job and files a section 1983 due process claim in federal court can invoke section 1367 to also file state law breach of contract and promissory estoppel claims.
However, if during the course of litigation the federal court dismisses the federal claims via a motion to dismiss, summary judgment or some other mechanism, pursuant to section 1367(c)(3), the court will commonly decline to exercise supplemental jurisdiction over the remaining state claims and dismiss them without prejudice. In such instances, the supplemental jurisdiction statute’s tolling provision, section 1367(d), provided what many understood was a grace period for plaintiffs to refile their state claims in state court: “The period of limitations for any [state] 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.”
Because Colorado Revised Statutes section 13-80-111 permits state claims to be refiled within 90 days of their dismissal in federal court for lack of jurisdiction, many attorneys believed that Colorado plaintiffs in this situation had a maximum of 90 days to refile their state claims.