Garber v. Menendez

• Decision Date: 01 May 2018
• Docket Number: No. 17-3992,17-3992
• Parties: Marshall GARBER, Plaintiff-Appellant, v. Heriberto MENENDEZ, M.D., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

888 F.3d 839

Marshall GARBER, Plaintiff-Appellant,

v.Heriberto MENENDEZ, M.D., Defendant-Appellee.

No. 17-3992

United States Court of Appeals, Sixth Circuit.

Argued: April 25, 2018

Decided and Filed: May 1, 2018

Rehearing En Banc Denied June 1, 2018

ARGUED: Jacob J. Beausay, DONAHEY, DEFOSSEZ & BEAUSAY, Columbus, Ohio, for Appellant. Kevin M. Norchi, NORCHI FORBES LLC, Cleveland, Ohio, for Appellee. Eric E. Murphy, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Amicus Curiae. ON BRIEF: Jacob J. Beausay, DONAHEY, DEFOSSEZ & BEAUSAY, Columbus, Ohio, for Appellant. Kevin M. Norchi, Brendan M. Richard, NORCHI FORBES LLC, Cleveland, Ohio, for Appellee. Eric E. Murphy, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Amicus Curiae.

Before: GUY, SUTTON, and COOK, Circuit Judges.

SUTTON, Circuit Judge.

Minors injured by medical malpractice in Ohio have one year to sue their doctors after they turn eighteen. When Marshall Garber sued Dr. Heriberto Menendez for malpractice in May 2017, one year had come and gone. But Ohio tolls the statute of limitations if the defendant leaves the State. The clock stopped when Dr. Menendez left Ohio for Florida and stayed stopped when he chose to retire there. That differential treatment of residents and non-residents, says Dr. Menendez, violates the dormant Commerce Clause of the United States Constitution by disincentivizing individuals from leaving Ohio and offering their services (or retirement spending) in other States. But the Ohio tolling provision does not discriminate against out-of-state commerce any more than many other policy benefits reserved for residents of a given State, including the existence of an income tax for Ohioans but not for Floridians. We reverse.

I.

In 2010, Dr. Menendez treated fifteen-year-old Garber for a fever, constipation, and back pain. The treatment did not go well. Garber became a paraplegic.

Garber’s first two attempts to sue Dr. Menendez failed. The state court dismissed Garber’s initial lawsuit because he failed to file an affidavit from an expert witness in support of his claim. See Ohio Civ. R. 10(D)(2). In his second lawsuit, Garber tried to serve Dr. Menendez at his Ohio office, but (unbeknownst to him) Dr. Menendez had retired to Florida by then. Garber voluntarily dismissed the lawsuit due to lack of service.

Garber sued Dr. Menendez a third time in May 2017, and properly served him. Garber acknowledged that Ohio provides a one-year statute of limitations for medical malpractice claims. See Ohio Rev. Code § 2305.113. And he acknowledged that the limitations period began running on August 5, 2013, when he turned eighteen. See id. § 2305.16. But his lawsuit remained timely, he explained, because Ohio tolls the statute of limitations when the defendant "departs from the state." See id. § 2305.15. Dr. Menendez left Ohio for Florida in April 2014, and he has not returned.

Dr. Menendez removed the lawsuit to federal court. He filed a motion to dismiss, arguing that Ohio’s tolling rules violated the dormant component of the Commerce Clause as applied to him. The district court agreed and dismissed Garber’s complaint.

II.

A.

"[A] page of history is worth a volume of logic," N.Y. Tr. Co. v. Eisner , 256 U.S. 345, 349, 41 S.Ct. 506, 65 L.Ed. 963 (1921), giving us high hopes for the several pages of history that inform today’s question.

For the first century and a half of American history, the States could not authorize their courts to impose liabilities upon people over whom they had no control. The "foundation of jurisdiction" being "physical power," McDonald v. Mabee , 243 U.S. 90, 91, 37 S.Ct. 343, 61 L.Ed. 608 (1917), a State could not exercise personal jurisdiction over a defendant unless the plaintiff served the defendant with process within the State, where it could exercise physical control over him. See Burnham v. Superior Court of Cal. , 495 U.S. 604, 616, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990).

Pennoyer v. Neff converted this common law rule into a constitutional command. It construed the Due Process Clause to mean that one State could not compel a party residing in another State to respond to a lawsuit. 95 U.S. 714, 733, 24 L.Ed. 565 (1877).

The common law rule and Pennoyer created a practical problem. Defendants might commit wrongs against a State’s residents and avoid liability by leaving the State and waiting for the statute of limitations to expire. Meyer v. Paschal , 330 S.C. 175, 498 S.E.2d 635, 637 (1998). Once a statute of limitations started, it usually did not stop. Many States responded to the problem by enacting laws that tolled the limitations period for out-of-state defendants, whether they fled the jurisdiction in the face of a lawsuit or left innocently for greener pastures. 2 H.G. Wood, A Treatise on the Limitation of Actions at Law and in Equity § 244, at 1143–47 (Dewitt C. Moore, ed., 4th ed. 1916) (collecting statutes).

Ohio joined this crowd early. Seven years after Ohio became a State in 1803, its legislature enacted a law that tolled the statute of limitations "when any person or persons against whom there is cause of action[ ] shall have left the state." An Act for the Limitation of Actions, ch. 213, § 2 (1810), reprinted in 1 The Statutes of Ohio and of the Northwestern Territory 656 (Salmon P. Chase, ed., 1833).

The premises of these policies and constitutional rulings shifted over time. By the early Twentieth Century, new modes of transportation and communication meant that many businesses sold their products in many States, not just one, and that most individuals could travel readily between and among the States.

Cue International Shoe . It held that the Due Process Clause no longer required in-state personal service on defendants for a state court to exercise personal jurisdiction over them. Int'l Shoe Co. v. Washington , 326 U.S. 310, 316, 319, 66 S.Ct. 154, 90 L.Ed. 95 (1945). After International Shoe , after the Court liberated the States from the requirement of having physical control over the parties in a lawsuit in its jurisdiction, every State enacted a long-arm statute that allowed claimants to file lawsuits against out-of-state defendants. See 1 Robert C. Casad, William M. Richman & Stanley E. Cox, Jurisdiction in Civil Actions § 4.01 (4th ed. 2014).

This change in law changed the policy calculus for tolling statutes of limitations, as the most salient justification for tolling the statute of limitations against out-of-state defendants no longer existed. Some state legislatures as a result amended their tolling statutes to apply only if their long-arm statute—usually construed to extend as far as the Due Process Clause permitted—could not reach the out-of-state defendant. See, e.g. , 735 Ill. Comp. Stat. 5/13-208 ; N.C. Gen. Stat. § 1-21 ; N.Y. C.P.L.R. § 207(3) ; Utah Code Ann. § 78B-2-104. Some state courts interpreted their tolling laws to have the same effect. See, e.g. , Meyer , 498 S.E.2d at 638–39 ; Kuk v. Nalley , 166 P.3d 47, 50–55 (Alaska 2007) ; Walsh v. Ogorzalek , 372 Mass. 271, 361 N.E.2d 1247, 1250 (1977).

But several States, including Ohio, did not alter their tolling statutes, whether via amendment or interpretation. The tolling laws of Ohio thus work today the way they always have worked. Seeley v. Expert, Inc. , 26 Ohio St.2d 61, 269 N.E.2d 121, 128 (Ohio 1971) (refusing to interpret Ohio’s tolling statute to apply to a defendant only when Ohio’s long-arm statute could not reach him).

In the face of these moving and non-moving parts, one other consideration deserves mention: The meaning of the Commerce Clause of the United States Constitution has not stood still. In granting Congress power "[t]o regulate Commerce ... among the several States," U.S. Const., art. I, § 8, cl. 3, the Constitution implied that the States had no such power. See 2 The Records of the Federal Convention of 1787, at 625 (Max Farrand ed. 1966) (James Madison grew "more & more convinced" that the regulation of commerce among the States "was in its nature indivisible and ought to be wholly under one authority."). Hence the creation of a negative, implied, dormant limitation on the States' power to regulate interstate commerce. For much of American history, a challenge to a state or federal regulation thus required courts to police the boundary between Congress’s exclusive sphere of regulation and the States' exclusive sphere. See Gibbons v. Ogden , 22 U.S. (9 Wheat.) 1, 187–89, 197–200, 6 L.Ed. 23 (1824) ; id. at 226–27 (Johnson, J., concurring).

Not so today. Over time, the lines between the separate spheres blurred, "in part because the nature of commerce changed, in part because the Supreme Court’s interpretation of the Commerce Clause changed." Am. Beverage Ass'n v. Snyder , 735 F.3d 362, 377 (6th Cir. 2013) (Sutton, J., concurring). Interstate commerce now embraces activities that were traditionally considered quintessentially local, such as growing wheat for home consumption, Wickard v. Filburn , 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), and local loan sharking, Perez v. United States , 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). Today, the National Government and the States exercise concurrent power over details large and small of everyday life. Separate spheres of power have given way to overlapping spheres of power, even to "cooperative federalism." See New York v. United States , 505 U.S. 144, 167, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992).

All of this changed the nature of dormant Commerce Clause review. It was once essential to keep each governmental authority—the Federal Government and the States—in their separate spheres. In a world of largely overlapping authority over interstate commerce, that imperative no longer drives the analysis. Through it all, from the founding to today, Congress retains power to police and correct discrimination against multi-state commerce on its own by preempting state laws that interfere with interstate commerce.

B.

Courts generally reserve dormant Commerce...