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Wednesday, January 05, 2005
Indiana Decisions - One today from the Court of Appeals
Fadia Al-Challah v. Barger Packaging Corporation (12/5/05 IndCtApp) [Statute of Limitations]
Sharpnack, Judge
Fadia Al-Challah appeals the trial court’s order granting Barger Packaging Corporation’s (“Barger”) motion to dismiss Al-Challah’s complaint as time barred. Al-Challah raises two issues, which we consolidate and restate as whether the trial court erred by finding that the Journey’s Account Statute was not applicable to Al-Challah’s complaint and by granting Barger’s motion to dismiss Al-Challah’s complaint as time barred. We affirm. * * *The statute of limitations on employment related actions is governed by Ind. Code § 34-11-2-1 (1998), which provides that such actions “must be brought within two (2) years of the date of the act or omission complained of.” Al-Challah was dismissed from her employment with Barger on October 2, 2001, and she filed a complaint against Barger in federal court and asserted federal law claims under the ADA and state law claims of wrongful discharge in December 2002. Thus, Al-Challah’s wrongful discharge claims were filed within the two-year statute of limitations. See I.C. § 34-11-2-1. On June 6, 2003, Al-Challah filed a motion requesting to voluntarily dismiss her federal claims with prejudice and to dismiss her state claim without prejudice, and that same day, the federal court signed Al-Challah’s proposed order dismissing her federal claims with prejudice and dismissing her state law claims without prejudice. At that time, Al-Challah still had approximately four months remaining before the expiration of the statute of limitations. Al-Challah then filed her state law wrongful discharge claim in the trial court on November 7, 2003, which was one month past the expiration of the two-year statute of limitation for her claim. See I.C. § 34-11-2-1. Barger filed a motion to dismiss Al-Challah’s complaint as time barred, which the trial court granted.
Al-Challah argues the trial court erred by dismissing her complaint as time barred because the Journey’s Account Statute saved her complaint from the expiration of the two-year statute of limitation. We disagree.
As our supreme court explained in Vesolowski v. Repay, 520 N.E.2d 433, 434 (Ind. 1988), reh’g denied:
At common law suits often were dismissed on technical grounds. In such cases, the plaintiff could file another writ known as a Journey’s Account. The renewal suit was deemed to be a continuation of the first. The time to bring another suit was computed theoretically with reference to the time required for the plaintiff to journey to where court was held. * * * Although the common law remedy is no longer recognized, Indiana has created a statutory remedy in its place. The Journey’s Account Statute, Ind. Code § 34-11-8-1 (1998) * * ** * * A complaint that is voluntarily dismissed is treated as if it never existed and, thus, cannot toll the statute of limitations. Kohlman, 509 N.E.2d at 232. Because Al-Challah voluntarily dismissed her federal lawsuit, her action did not “fail” within the meaning of the Journey’s Account Statute. Therefore, the trial court did not err by finding that the Journey’s Account Statute was not applicable by granting Barger’s motion to dismiss Al-Challah’s complaint as time barred. * * *For the foregoing reasons, we affirm the trial court’s order granting Barger’s motion to dismiss Al-Challah’s complaint. Affirmed.
BAILEY, J. and MAY, J. concur
Posted by Marcia Oddi on January 5, 2005 02:03 PM
Posted to Ind. App.Ct. Decisions