Time Considerations for Your Small Claims Suit - dummies

Time Considerations for Your Small Claims Suit

By Judge Philip Straniere

Time is generally not on your side in the legal system, and the sooner you bring your case to small claims court the better. Defendants leave the state, people die, retire, or become too ill or too befuddled to testify, and over time, your case may take on less of a sense of urgency to anyone but you.

Statutes of limitations

Different classifications of lawsuit have specific time frames in which an injured party — that’s you — may bring a cause of action. The legislature of each state sets the state’s time periods, which is why you must always check your state’s laws. The law that determines time frames in each state is called the statute of limitations.

If you fail to start an action before the statute of limitations has run out, your claim could be dismissed with prejudice. That means the lawsuit will never see the light of day. This is a defense that the defendant has to raise when the defendant answers your complaint. If the defendant fails to bring the issue to the judge’s attention, the defense is said to have been waived.

In some states, unless the defendant raises the statute of limitations as a defense, it isn’t a valid defense; the court doesn’t have to tell a defendant that the statute of limitations has expired — if it even knows. After a case is underway, generally it’s too late.

In other states, the statute of limitations may be raised at any time and cannot be waived. This means that a defendant can raise the fact that the statute of limitations has passed even after the trial is over. Whatever the results of the trial are, they’re moot because the law in that state would have prevented the case from going forward initially.

States may also have rules which allow the statute of limitations to be tolled or stayed meaning that the time is not running on the plaintiff to start the lawsuit. If the defendant has moved out of the state, this may be a reason the statute of limitations would be tolled. If the plaintiff simply cannot find her, this generally does not toll the statute of limitations.

Clerks generally can’t give legal advice at all, let alone advice as to what the statute of limitations period is for a particular kind of action and whether or not it has run out. This is legal advice, and most states require that only lawyers give legal advice.

There’s a good reason for this rule. If you’re wrong about the type of case you have and wait too long to file it, your case would be dismissed on the merits. Court employees don’t want to open themselves up for a lawsuit if they gave the wrong advice.

Statutes of limitations in different states

There’s no standardization in the statutes of limitations between states. You may be able to see an action brought for breach of contract for six years in one state and four years in another. Some lawsuits such as those for intentional torts may have to be brought in as little as one year after the incident.

Some contract actions may be governed by a specific statute that applies only to specific breaches of contract, such as the Uniform Commercial Code.

For example, in New York, a common law contract action has a six-year statute of limitations, although a contract action subject to the Uniform Commercial Code has a four-year statute of limitations period.

Personal injury lawsuits can also be subject to different statutes of limitations in different states. Even if the states are close neighbors connected by large bridges that millions of people travel every day, such as New York and New Jersey, they won’t necessarily have the same statute of limitations.

If you think you have a contract action, but what you really have is a negligence claim, you may miss the filing date and have the case dismissed. Knowing how to classify your claim is very important; knowing when to bring it is a key component of any lawsuit.

This is not one of those rules that is forgotten about or viewed more liberally just because the case is brought in small claims court or just because you don’t have a lawyer. If you blow the statute of limitations, your case is over.

Say you want to sue your lawyer for legal malpractice because she failed to file the case in a timely fashion. You believe that because you have a written retainer with her, you have a breach of contract action against her, and in your state, New York, breach of contract has a six-year statute of limitations.

Unfortunately for you, in New York and other states, the mere fact that there is a retainer does not make it a contract case. New York considers it a negligence-malpractice claim and the statute of limitations is only three years.


Sometimes a defendant can have the plaintiff’s case dismissed even if the statute of limitations has not run out. If the defendant can establish that the plaintiff waited such a long time to bring the suit that it is unfair to allow it to continue, a court may dismiss the case based on the equitable defense of laches.

Laches is the idea that too much time has passed, making it impossible for the defendant to properly defend the claim.

For example, the statute of limitations is six years for breach of contract in a particular state. The plaintiff waits 5 years, 11months, and 29 days to bring the action.

Although this lawsuit was timely under the statute of limitations and the defendant could not raise that as a legal defense, the defendant can claim that it’s unfair to have to defend this lawsuit because so much time had passed, making it impossible to get witnesses or produce records. The defendant would raise the equitable defense of laches.