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Statute of Limitations are Equitable Tolling

Statute of Limitations are Equitable Tolling

In a brand new decision, and for the first time, the Nevada Supreme Court answers the question under what circumstances someone can file a lawsuit after the statute of limitation has passed.  

Fausto v. Sanchez-Flores
137 Nev. Adv. Op. 11 (2021)

The Nevada Supreme Court just issued a decision regarding filing personal injury claims in Nevada.  In Nevada, there is a 2-year statute of limitations on wrongful death and personal injury claims.  NRS 11.090(4)(e).  In the Fausto v. Sanchez-Flores case, the Plaintiff alleged that the Defendant sexually assaulted her on December 30, 2016.  She filed a civil complaint for a sexual assault two and a half years after the alleged sexual assault occurred on December 30, 2016.

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The Defendant filed a motion to dismiss arguing that NRS 11.090 prevented the claim because it was over 2 years since the alleged incident.  The Plaintiff responded that the statute of limitations should be tolled in her case because she was allegedly not notified until February 2, 2019, that the rape kit and unwashed clothing from the night of the incident had been processed by the police lab and revealed the Defendant’s DNA.

The Court explained that the 2 year period in NRS 11.090 starts running when the wrong occurs and the party is injured.  The Court stated that equitable tolling is a remedy that permits a court to suspend a statute of limitations and allow a case that was filed too late to proceed.  The Court found equitable tolling should apply to the statute of limitations in NRS 11.090.  In determining whether to toll a statute and allow an untimely case to proceed, a plaintiff must demonstrate diligence in pursuing his claims and that some extraordinary circumstance prevented the plaintiff from bringing a timely action.  The following factors should be considered:

  • The diligence of claimant;
  • The claimant’s knowledge of the relevant facts; and 
  • Any other equitable considerations appropriate to the particular case.

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