Heriberto Menendez v. Marshall Garber

For over a century, Ohio has maintained a statute, like others in all 50 states, that tolls limitations when the defendant is “out of ” or “departs from” the state. Ohio Rev. Code § 2305.15. In Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888 (1988), the Court held § 2305.15 imposes “impermissible burden on commerce,” id. at 892, when applied to non-residents. This was because of the unique disability it foisted on non-residents: As they are always “absent from the state,” they remain subject to perpetual liability. And the Court concluded that this non-resident burden was not offset by any legitimate benefit to plaintiffs, given the ease of using longarm statutes to sue non-residents in the postInternational Shoe world. Id. at 889-890. Yet there is a deep, acknowledged split among U.S. courts over the proper application of such out-of-state tolling statutes to residents who permanently leave the state, and thus become non-residents, after the events underlying the suit—thereby incurring equally perpetual liability. One circuit and six state supreme courts have held these statutes impose impermissible burdens on interstate commerce when applied in these circumstances, or have interpreted statutes narrowly to avoid that result. The Sixth Circuit, by contrast, held that these statutes impose no cognizable burden on interstate commerce in these circumstances. The question presented is: Whether a state statute that tolls limitations while the defendant is absent from the state imposes constitutionally impermissible burdens on interstate commerce when applied to a resident who permanently departs the state after the events giving rise to suit, yet remains amenable to service under the state’s long-arm statute.