Arizona Court of Appeals Division One Holds That 28 U.S.C. § 1367(d) Does Not Toll the Statute of Limitations on Supplemental State Law Claims Where the Federal Action Was Dismissed for Lack of Subject Matter Jurisdiction.

In March 2003, Defendant Dr. Giovan performed surgery on Plaintiff Morris.  In September 2004, Morris filed a medical malpractice action in superior court against “John Doe,” which was dismissed for lack of service in March 2005.  In August 2006, Morris filed suit in federal district court pursuant to the Federal Tort Claims Act (“FTCA”), naming the United States, Phoenix Indian Medical Center, and Dr. Giovan as defendants.  Morris also asked the court to exercise supplemental jurisdiction over state law claims against Dr. Giovan.  The federal action was dismissed for lack of subject matter jurisdiction in October 2007 because Morris failed to identify any federal employees who were negligent as required under the FTCA.  In March 2007, Morris filed a second state court action, this time naming Dr. Giovan as defendant.  The trial court granted Dr. Giovan’s motion for summary judgment because the statute of limitations had run.  Morris did not timely appeal this ruling, and instead filed a motion for relief from final judgment under Rule 60(c)(6).  The trial court denied that motion and Morris timely appealed. 

The Arizona Appeals Court affirmed, holding that 28 U.S.C. § 1367(d) did not toll the statute of limitations on Morris’s supplemental state law claims against Dr. Giovan.  That statute provides in relevant part:  “[t]he 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.”  Arizona law provides a longer tolling period – six months.  See A.R.S. § 12-504(A). 

Citing Raygor v. Regents of University of Minnesota, 534 U.S. 533 (2002), the Court of Appeals held that  28 U.S.C. § 1367(d)’s tolling provision does not apply to supplemental state law claims where the federal action was dismissed for lack of subject matter jurisdiction.  Put another way, when the federal court lacks subject matter jurisdiction, its power to assert supplemental jurisdiction over state law claims is never triggered.  Accordingly, because the federal court never had subject matter jurisdiction over Morris’ federal claims, it could not have asserted supplemental jurisdiction over his state law claims, and the tolling provision of § 1367(d) was not triggered.

The Court also denied Dr. Giovan’s request for attorneys’ fees pursuant to A.R.S. § 12-349(A), finding that Morris’ appeal was not frivolous or unreasonable.

Judge Orozco authored the opinion; Presiding Judge Portley and Judge Downie concurred.