The opinion of the court was delivered by: Hillman, District Judge
Pending before the Court is the motion of defendant, Atlantic City Showboat, Inc., d/b/a Showboat Casino Hotel, to dismiss the complaint of plaintiff, Marlene Sabin, for her failure to file her personal injury complaint within the applicable statute of limitations. For the reasons expressed below, defendant's motion will be granted.
According to plaintiff's complaint, on November 13, 2007, she was a business invitee at the defendant casino in Atlantic City, New Jersey. Plaintiff claims that the casino was operated in such a careless and negligent manner that it caused plaintiff to be abducted. As a result of defendant's conduct, plaintiff claims that she suffered, continues to suffer, and will suffer in the future great pain and anguish, resulting in medical treatment and loss of time from employment and activities.*fn1
On November 18, 2009, plaintiff, a citizen of New York, filed suit against defendant in this Court. Defendant subsequently moved to dismiss plaintiff's complaint because she did not file it within the two-year statute of limitations which applies to personal injury actions brought pursuant to New Jersey law. Plaintiff has opposed defendant's motion, arguing that New York law--and its three-year statute of limitations--applies, and therefore her complaint was timely filed. Alternatively, plaintiff asserts that the principle of equitable tolling saves her complaint.
A. Subject Matter Jurisdiction
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000.
B. Standard for Considering a Statute of Limitations Argument on a Motion to Dismiss
If a statute of limitations issue is apparent on the face of plaintiff's complaint, the Court may properly consider the statute of limitations defense in a Rule 12(b)(6) motion. Zankel v. Temple University, 245 Fed. Appx. 196, 198 (3d Cir. 2007) (citing Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002) (quoting Hanna v. U.S. Veterans' Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975)) ("Although Rule 12(b) does not explicitly permit the assertion of a statute of limitations defense by a motion to dismiss, the so-called 'Third Circuit Rule' allows a defendant to assert a limitations defense in a Rule 12(b)(6) motion 'if the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.'").
Defendant argues that plaintiff's complaint must be dismissed because she filed it five days late. New Jersey law provides, "Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this State shall be commenced within 2 years next after the cause of any such action shall have accrued . . . ." N.J.S.A. 2A:14-2(a). Because plaintiff's alleged injuries occurred on November 13, 2007, but she did not file her complaint until November 18, 2009, defendant contends that it is time-barred.
Plaintiff does not dispute that she filed her complaint after the November 13, 2009 deadline under New Jersey law. Plaintiff argues, however, that New York law should apply to her case. New York provides for a three-year statute of limitations to personal injury actions, see N.Y. Civ. Prac. L. & R. § 214, and, since New York law applies, plaintiff contends that she timely filed her complaint. Alternatively, plaintiff argues that extraordinary circumstances exist such that even if New Jersey law applied, the limitations period should have been tolled.
With regard to plaintiff's argument that New York law should apply, plaintiff contends that she could have instituted her action in a New York court, since defendant is subject to personal jurisdiction there and she is a citizen of New York. Plaintiff argues that because New York law would apply in a New York court, she should not be penalized for bringing her case in ...