22-1442 Jones v. Cattaraugus-Little Valley Cent. Sch. Dist.

United States Court of Appeals for the Second Circuit

August Term 2023

Argued: November 9, 2023 Decided: March 20, 2024

No. 22-1442

BRITTANY N. JONES, a.k.a. BRITTANY N. FINCH,

Plaintiff-Appellant,

v.

CATTARAUGUS-LITTLE VALLEY CENTRAL SCHOOL DISTRICT,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of New York No. 19-cv-707, William M. Skretny, Judge.

Before: RAGGI, SULLIVAN and LEE, Circuit Judges.

Brittany Jones appeals from a judgment of the United States District Court for the Western District of New York (Skretny, J.) granting summary judgment to Cattaraugus-Little Valley Central School District on Jones’s civil claims alleging that she was sexually abused by a teacher when she was a high school student between 2009 and 2011. Jones brought her otherwise time-barred claims pursuant to the claim-revival provision of New York’s Child Victims Act (the “CVA”),

-g, which permitted plaintiffs to assert claims arising from their sexual abuse as minors during a two-year filing window from August 14, 2019 to August 14, 2021. The district court granted summary judgment in favor of the school district on the ground that Jones’s suit was filed four months before the start of the two-year window. Because the two-year window had already closed by the time of the district court’s judgment, Jones was unable to refile her dismissed claims. Central to the district court’s decision was its assumption that Jones’s premature filing created a valid statute-of-limitations defense for the school district. But the district court did not explain this assumption, and no New York court has interpreted section 214-g’s waiting period as a statute of limitations. Given the lack of state court decisions to guide us and the significant state policy interests implicated by the CVA, we reserve decision on this appeal in order to CERTIFY the following question to the New York Court of Appeals: whether the six-month waiting period for claims filed pursuant to the claim-revival provision of New York’s Child Victims Act,

-g, establishes a statute of limitations, a condition precedent to bringing suit, or some other affirmative defense.

QUESTION CERTIFIED.

VIRGINIA H. MCMICHAEL, Appellate Law Group LLC, Radnor, PA, for Plaintiff- Appellant.

PATRICK J. HINES (Alexandria N. Rowen, on the brief), Hodgson Russ LLP, Buffalo, NY, for Defendant-Appellee.

PER CURIAM:

Brittany Jones appeals from a June 14, 2022 judgment of the United States

District Court for the Western District of New York (William M. Skretny, J.)

granting summary judgment to Cattaraugus-Little Valley Central School District

2 on Jones’s civil claims alleging that she was sexually abused by a teacher when she

was a high school student between 2009 and 2011. Jones brought her otherwise

time-barred claims pursuant to the claim-revival provision of New York’s Child

Victims Act (the “CVA”),

-g, which permitted plaintiffs to assert

claims arising from their sexual abuse as minors during a two-year filing window

from August 14, 2019 to August 14, 2021. The district court granted summary

judgment in favor of the school district on the ground that Jones’s suit was filed

four months before the start of the two-year window. Because the two-year

window had already closed by the time of the district court’s judgment, Jones was

unable to refile her dismissed claims. Central to the district court’s decision was

its assumption that Jones’s premature filing created a valid statute-of-limitations

defense for the school district. But the district court did not explain this

assumption, and no New York court has interpreted section 214-g’s waiting period

as a statute of limitations. Given the lack of state court decisions to guide us and

the significant state policy interests implicated by the CVA, we reserve decision

on this appeal in order to CERTIFY the following question to the New York Court

of Appeals: whether the six-month waiting period for claims filed pursuant to the

claim-revival provision of New York’s Child Victims Act,

-g,

3 establishes a statute of limitations, a condition precedent to bringing suit, or some

other affirmative defense.

I. BACKGROUND

On February 14, 2019, New York enacted the CVA, which revived otherwise

time-barred claims of plaintiffs who were sexually abused as minors and created

a two-year filing window – beginning August 14, 2019 – for plaintiffs to bring

claims for harms resulting from that abuse. 1 On April 9, 2019, Jones sued her

former school district for harms she suffered after a teacher sexually abused her

when she was fifteen and sixteen years old. On May 31, 2019, the school district

removed the case to federal court pursuant to

based on the parties’

diversity of citizenship; that same day, the school district filed an answer asserting

eighteen defenses, including a general defense that “Plaintiff’s complaint is barred

by the applicable statute of limitations.” Jones App’x at 36. Notwithstanding

Jones’s premature filing, the school district did not file a motion to dismiss the suit

pursuant to Federal Rules of Civil Procedure 12(c) and 12(h)(2)(B). Instead, the

parties proceeded with discovery, which continued for more than two years,

during which time the school district made several motions to extend discovery

1 The CVA originally created a one-year revival window, but New York subsequently extended the window by another year. See 2020 N.Y. Laws ch. 130.

4 deadlines. It was not until September 3, 2021 – three weeks after the two-year

window for filing claims revived by the CVA had closed – that the school district

moved for summary judgment on its statute-of-limitations defense, arguing that

Jones’s suit was untimely since it was filed nearly four months before the CVA

filing window opened. The district court agreed, granting summary judgment

and rejecting Jones’s arguments that equity and the interests of justice should

prevent the school district from strategically litigating its statute-of-limitations

defense only after the CVA filing window had closed. This appeal followed.

II. DISCUSSION

We review a grant of summary judgment de novo. See Garcia v. Hartford Police

Dept.,

(2d Cir. 2013). “Summary judgment is required if there is

no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Covington Specialty Ins. Co. v. Indian Lookout Country Club, Inc.,

(2d Cir. 2023) (internal quotation marks omitted).

The question on appeal is whether section 214-g’s six-month waiting period

requires a plaintiff’s prematurely filed claim to be dismissed upon a defendant’s

motion made after the two-year filing window has closed. The answer to that

question turns on whether section 214-g’s waiting period is a statute of limitations,

5 since we have held that a defendant may litigate a statute-of-limitations defense

even as late as trial so long as the defense was timely asserted under Federal Rule

of Civil Procedure 8(c). See Kulzer v. Pittsburgh-Corning Corp.,

(2d

Cir. 1991) (holding that state-law statute-of-limitations defense may be litigated

for first time in motion for directed verdict because defense was preserved under

Rule 8(c) by its “bare assertion” in defendant’s answer). For the reasons set forth

below, we conclude that neither the text of section 214-g nor New York court

precedents indicate whether the waiting period is a statute of limitations, so we

certify the question to the New York Court of Appeals.

A. The text of section 214-g does not indicate whether the six-month waiting period is a statute of limitations.

“We begin with the statutory text, which is the clearest indicator of

legislative purpose.” 2 In re M.B.,

(2006); see Henson v. Santander

Consumer USA Inc.,

(2017) (“[W]e begin, as we must, with a careful

2 We have not addressed whether a federal court interpreting a state statute “should be guided primarily by federal or state interpretive principles.” 1256 Hertel Ave. Assocs., LLC v. Calloway,

, 260 n.5 (2d Cir. 2014) (citing Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine,

(2011)). We have no occasion to do so today since, as in 1256 Hertel Ave., both New York and federal caselaw direct us to similar interpretive principles that do not produce different results in this case.

6 examination of the statutory text.”). Section 214-g, which is located within N.Y.

C.P.L.R. Article 2 - Limitations of Time, provides in relevant part:

Notwithstanding any provision of law which imposes a period of limitation to the contrary . . . , every civil claim or cause of action [meeting certain requirements] . . . is hereby revived, and action thereon may be commenced not earlier than six months after, and not later than two years and six months after the effective date of this section.

As written, the relevant portion of section 214-g contains two independent

clauses. The first – the revival clause – provides that, “[n]otwithstanding any

provision of law which imposes a period of limitation to the contrary,” certain

claims based on child sexual abuse are “hereby revived.”

-g.

The plain meaning of those words indicates that such revival occurred

immediately, and without qualification, upon the enactment of the CVA on

February 14, 2019. See Hereby, Black’s Law Dictionary 872 (11th ed. 2019) (“[b]y

this document”); see also Child Victims Act, 2019 N.Y. Laws ch. 11 § 12 (“This act

shall take effect immediately.”). 3

The second clause – which defines the time period in which such revived

claims may be brought – provides that “action [on the revived claims] may be

3The school district argues – as it did in its motion for summary judgment – that the CVA did not revive claims until the start of the filing window and that therefore the originally applicable statute of limitations remained in effect during the waiting period. That argument is plainly contradicted by the text of section 214-g.

7 commenced not earlier than six months after, and not later than two years and six

months after [February 14, 2019].”

-g. Thus, having revived

otherwise time-barred claims, the CVA imposed both a start date and an end date

for commencing actions thereon, resulting in a two-year filing window.

New York courts have held that the end of the two-year filing window is a

statute of limitations. See A.S. v. Erie County,

(4th Dep’t 2023)

(describing the end date of the section 214-g filing window as a “statute of

limitations” “expir[ing] . . . on August 14, 2021”); Shapiro v. Syracuse Univ,

(4th Dep’t 2022) (describing section 214-g as statute of limitations

without specifically considering waiting period); M.C. v. State,

,

756 (Ct. Cl. 2022) (same). Less clear, and central to this appeal, is whether the filing

window start date – which created a six-month waiting period from the effective

date of the act – is also a statute of limitations.

As the district court acknowledged, waiting periods and statutes of

limitations have distinct purposes. “Statutes of limitations require plaintiffs to

pursue diligent prosecution of known claims” and prevent claims from being

“allowed to slumber until evidence has been lost, memories have faded, and

witnesses have disappeared.” CTS Corp. v. Waldburger,

, 8 (2014)

8 (internal quotation marks omitted). Waiting periods, by contrast, do just the

opposite. They direct plaintiffs to delay for a period before bringing claims that

they otherwise might have brought earlier. Furthermore, “[s]tatutes of limitations

embody a policy of repose, designed to protect defendants.” Lozano v. Montoya

Alvarez,

(2014) (internal quotation marks omitted). But a waiting

period provides no such repose. Unlike an end date, a start date permanently bars

no claims, since a prematurely filed claim can, in the ordinary course, simply be

re-filed once the waiting period ends. See Vincent C. Alexander, Supplementary

Practice Commentaries, McKinney’s Cons. Laws of N.Y., C.P.L.R. 214-g, 2019

(explaining purposes of waiting period: “to give victims and their attorneys an

opportunity to begin preparing their cases before the clock started ticking on the .

. . revival period, and . . . to enable the court system to meet the special issues that

the ensuing litigation was likely to generate”).

Two courts to have considered claims filed prematurely under section 214-g

have permitted such claims to be refiled. In Geiss v. Weinstein Co. Holdings LLC, a

federal court dismissed without prejudice a plaintiff’s claims brought prematurely

under section 214-g with the expectation that the claims would be refiled after the

waiting period expired. See

(S.D.N.Y. 2019) (dismissing

9 plaintiff’s claims because plaintiff had not shown compliance with the “filing

requirements” of section 214-g but doing so without prejudice to asserting those

claims “when they become timely under section 214-g”). Similarly, in Carlino v.

Roman Catholic Diocese of Brooklyn, a New York court dismissed a complaint filed

during section 214-g’s six-month waiting period while recognizing that the

“plaintiff [wa]s free to avail himself of the [CVA] and [section] 214-g as of August

14, 2019.” No. 703825/2019,

, at *3 (Sup. Ct. Aug. 15,

2019).

But in both Geiss and Carlino, the defendants expressly raised their

premature-filing argument in a pre-answer motion to dismiss filed while the

waiting period was still in effect. Neither case addressed the question of whether

the filing-window start date is itself a statute of limitations that may be preserved

as a defense through the defendant’s “bare assertion” of a statute-of-limitations

defense in its answer. Nor has any other New York court (that we are aware of)

shed light on this question. We must therefore “either predict how the New York

Court of Appeals would resolve the question[] or certify the statutory

interpretation question to the New York Court of Appeals for a definitive

resolution.” Benesowitz v. Metro. Life Ins. Co.,

(2d Cir. 2006)

10 (alterations and internal quotation marks omitted), certified question answered,

(2007).

B. Certification to the New York Court of Appeals is appropriate to determine whether section 214-g’s waiting period is a statute of limitations.

In deciding whether to certify a question to the New York Court of

Appeals, “we consider three questions: (1) whether there are authoritative state

court interpretations of the statutory language; (2) whether the issue is important

to a state policy; and (3) whether certification can resolve the appeal.” Nitkewicz v.

Lincoln Life & Ann. Co. of N.Y.,

(2d Cir. 2022) (internal quotation

marks omitted), certified question answered,

(2023). Here, all three

factors weigh in favor of certification.

First, neither the New York Court of Appeals nor any New York court has

confronted the question of whether section 214-g’s waiting period is a statute of

limitations. This factor therefore counsels in favor of certification, lest “the only

precedent on point be that of the federal court, which may be mistaken.” Carney

v. Philippone,

(2d Cir. 2003) (internal quotation marks omitted).

Second, the issue of whether section 214-g’s waiting period is a statute of

limitations is important to New York’s policy of providing remedies to victims of

childhood sexual abuse, a policy interest that was significant enough to warrant

11 the “extreme exercise of legislative power” that is a claim-revival statute. Matter

of Regina Metro. Co., LLC v. N.Y. State Div. of Hous. & Cmty. Renewal,

,

371 (2020) (internal quotation marks omitted). And while it is difficult to know

how many existing cases – in federal and state court – may involve this precise

issue of prematurely-filed claims under the CVA, it bears noting that New York

has replicated the language of section 214-g’s waiting period in other revival

statutes that, to our knowledge, have not yet been interpreted. See

-j.

Third, certification of this issue to the New York Court of Appeals will

resolve this appeal. If section 214-g’s waiting period is deemed to be a statute of

limitations, there can be no doubt that the district court’s judgment must be

affirmed. While Jones argues that the school district should be equitably estopped

from asserting a statute-of-limitations defense based on her failure to comply with

the waiting period, New York law makes clear that “[e]quitable estoppel is

appropriate [only] where the plaintiff is prevented from filing an action within the

applicable statute of limitations due to his or her reasonable reliance on deception,

fraud[,] or misrepresentations by the defendant.” Putter v. N. Shore Univ. Hosp.,

, 552–53 (2006). Here, Jones failed to comply with section 214-g’s

12 waiting period because her attorney misread the statute. See Jones App’x at 103.

There is no indication that any action by the school district kept Jones from

discovering and correcting her mistake. 4

Similarly, if the New York Court of Appeals were to determine that the

waiting period establishes a “condition precedent to bringing a suit” – the

functional equivalent of making the waiting period a “substantive element of the

cause of action” – we would affirm the district court’s judgment on the grounds

that Jones did not meet that condition and therefore failed to state a claim upon

which relief could be granted. Singer v. Eli Lilly & Co.,

, 655–56

(1st Dep’t 1990) (holding that compliance with filing end date set by New York

Toxic Tort Revival Statute, which did not create a waiting period, was “substantive

element of the cause of action”); but cf. Clark v. Abbott Laboratories,

, 933–34 (4th Dep’t 1990) (rejecting First Department’s approach in Singer and

concluding that filing end date set by Toxic Tort Revival Statute was new statute

of limitations, not condition precedent to filing suit, since revival statute did not

4Jones’s unsupported assertion that the school district told her lawyer that it did not plan to file a motion for summary judgment – even if we assume its truth – does not alter this conclusion, since the school district would have been free to assert its statute-of-limitations defense at trial regardless of whether it filed a summary judgment motion. The school district’s alleged statement therefore could not have “kept [Jones] from timely bringing suit.” Putter,

.

13 create the underlying cause of action); Anderson v. Eli Lilly & Co.,

(1991) (arguably endorsing 4th Dep’t approach by holding that Toxic Tort

Revival Statute “merely temporarily revived certain previously time-barred

claims – it did not act to create any new causes of action”). Although the district

court here did not treat the waiting period as a condition precedent, such a ruling

by the New York Court of Appeals would compel an affirmance, since “[i]t is well

settled that we may affirm on any grounds for which there is a record sufficient to

permit conclusions of law, including grounds not relied upon by the district

court.” Olsen v. Pratt & Whitney Aircraft, Div. of United Techs. Corp.,

(2d Cir. 1998) (internal quotation marks omitted); see also Patel v. Contemp.

Classics of Beverly Hills,

(2d Cir. 2001) (“[T]he defense of failure to

state a claim is not waivable.”).

On the other hand, if the New York Court of Appeals were to conclude that

the waiting period does not create a statute of limitations or condition precedent,

but rather establishes some other affirmative defense, 5 we would be compelled to

5 If the waiting period did not create a condition precedent to bringing suit, then, to the extent it created a defense at all, the defense must be, for purposes of the Federal Rules of Civil Procedure, an affirmative defense. See Saks v. Franklin Covey Co.,

(2d Cir. 2003) (defining affirmative defense as “defendant’s assertion raising new facts and arguments that, if true, will defeat the plaintiff’s or prosecution’s claim, even if all allegations in the complaint are true” (internal quotation marks omitted)); Charles Alan Wright & Arthur R. Miller, 5 Fed. Prac. & Proc.

14 reverse the district court’s judgment because the defense was forfeited. Rule 8(c)

requires affirmative defenses to be stated in a defendant’s responsive pleading.

See Fed. R. Civ. P. 8(c)(1); Travellers Int’l, A.g. v. Trans World Airlines, Inc.,

(2d Cir. 1994) (“The general rule in federal courts is that a failure to

plead an affirmative defense results in a waiver.”). Here, the school district did

not raise its waiting-period defense – other than through the bare assertion of a

statute of limitations defense in its answer – until summary judgment. And while

a defendant may amend its answer under Rule 15 to add affirmative defenses,

such leave “may only be given when factors such as undue delay or undue

prejudice to the opposing party are absent.” SCS Commc'ns, Inc. v. Herrick Co., Inc.,

(2d Cir. 2004). Jones would unquestionably suffer undue

prejudice if the school district were allowed to add a defense based on section

214-g’s waiting period after the two-year filing window has already closed.

Accordingly, if the waiting period does not create a statute of limitations or

condition precedent, we would reverse the judgment of the district court, deem

Civ. § 1271 (4th ed. Apr. 2023 update) (explaining that, even in diversity case, determination of whether a defense not enumerated in Rule 8(c) is “affirmative defense” for purposes of Federal Rules is governed by federal pleading principles).

15 the affirmative defense to have been forfeited, and remand the case for further

proceedings.

III. CONCLUSION

For the foregoing reasons, we CERTIFY the following question to the New

York Court of Appeals:

Whether the six-month waiting period for claims filed pursuant to the claim-revival provision of New York’s Child Victims Act,

-g, establishes a statute of limitations, a condition precedent to bringing suit, or some other affirmative defense.

In certifying this question, we understand that the New York Court of Appeals

may reformulate or expand the certified question as it deems appropriate.

It is hereby ORDERED that the Clerk of this Court transmit to the Clerk of

the New York Court of Appeals a certificate in the form attached, together with a

copy of this opinion and a complete set of briefs, appendices, and the record filed

by the parties in this Court. This panel will retain jurisdiction to decide the case

once we have had the benefit of the views of the New York Court of Appeals or

once that court declines to accept certification. Decision is RESERVED.

CERTIFICATE

The foregoing is hereby certified to the Court of Appeals of the State of New

York pursuant to Second Circuit Local Rule 27.2 and New York Codes, Rules, and

16 Regulations title 22, § 500.27(a), as ordered by the United States Court of Appeals

for the Second Circuit.

17