FROM THE JEFFERSON COUNTY CIRCUIT COURT [NOS. 35CV-13-532 AND
35CV-15-586] HONORABLE ROBERT H. WYATT, JR., JUDGE
McKissic & Associates, PLLC, by: Gene E. McKissic, Sr.,
and Jackie B. Harris, for appellant.
Friday, Eldredge & Clark, LLP, by: Robert S. Shafer and
Jamie Huffman Jones, for appellee.
PHILLIP T. WHITEAKER, JUDGE.
Skender appeals a Jefferson County Circuit Court order
dismissing with prejudice his Federal Employers'
Liability Act (FELA) claim against Union Pacific
Railroad Company (UPRR). He claims that the trial court erred
in determining that equitable tolling did not apply to save
his claim from the expiration of the statute of limitations.
the third time this case is before us on appeal. The
underlying facts are not complicated. On July 11, 2012,
Skender, a UPRR employee, was injured while working at a UPRR
repair track in Pine Bluff, Arkansas. From this injury,
Skender filed separate causes of action under FELA. He timely
filed and served his first FELA cause of action against UPRR
on October 25, 2013. (35CV-13-532-2). After the statute of
limitations had run, UPRR filed a motion to dismiss,
asserting that the summons issued with the complaint was
fatally deficient. Skender denied that the summons was
deficient but alternatively contended that any deficiency was
cured by application of the Arkansas savings statute or the
doctrine of equitable tolling. On October 19, 2015, the trial
court granted UPRR's motion to dismiss, finding the
summons was fatally deficient. The trial court, however,
ordered the dismissal to be without prejudice based on the
application of the Arkansas savings statute as set forth in
Clouse v. Tu, 101 Ark.App. 260, 274 S.W.3d
260 (2008). Because the trial court ruled that the savings
statute was applicable to save Skender's claim, it did
not address Skender's equitable-tolling claim at that
filed the initial and first appeal with our court, alleging
that the October 19, 2015 order of dismissal should have been
with prejudice, contending that the Arkansas savings statute
was inapplicable to FELA actions. In a cross-appeal, Skender
challenged the trial court's determination that the
summons issued in the case was fatally deficient. While the
appeal was pending, Skender filed his second FELA cause of
first appeal, we affirmed the trial court's determination
that the original summons in 35CV-13-532-2 was fatally
deficient. We also agreed with UPRR's contention that the
trial court erred in applying the Arkansas savings statute to
the FELA action. However, we remanded for the trial court to
make the requisite findings on whether equitable tolling was
available to suspend the statute and whether dismissal with
or without prejudice was appropriate. Union Pac. R.R. Co.
v. Skender, 2016 Ark.App. 206, 489 S.W.3d 176.
remand, the trial court found that Skender had not pursued
his rights diligently and had not shown any extraordinary
circumstance that prevented a timely filing. As such, the
trial court held that Skender had failed to prove that he was
entitled to equitable tolling of his claim. Accordingly, the
trial court dismissed both complaints (35CV-13-532-2 and
35CV-15-586-2) with prejudice. Skender appealed both
dismissals, arguing that the trial court erred in determining
that equitable tolling did not apply. In this second appeal,
we were unable to reach the merits of Skender's arguments
because the briefing was deficient, and we ordered a
supplemental addendum. Skender v. Union Pac. R.R.
Co., 2017 Ark.App. 649. Skender has complied with our
addendum directives, and we now address the merits of his
asserts that equitable tolling should apply to save his
claim. Citing Burnett v. New York Central Railroad
Co., 380 U.S. 424 (1965), and Glus v. Brooklyn
Eastern District Terminal, 359 U.S. 231 (1959), he
contends that equitable tolling is appropriate when a
plaintiff timely files an otherwise defective pleading or
when the plaintiff has been induced or tricked by the
opposing party to allow the filing deadline to pass. He
maintains that he timely filed a pleading that was only later
determined to be defective and that he acted with proper
diligence in pursuing his claim for damages pursuant to FELA.
He further contends that UPRR was aware during the
limitations period that he was actively pursuing his claim
and that, as a result, the policy underlying the
implementation of the statute of limitations is not violated
by equitable tolling.
trial court found, however, that Skender had not acted
diligently in pursuing his claim. The trial court found that
UPRR timely answered Skender's complaint in December
2015, asserting the defenses of "insufficiency of
process" and "insufficiency of service of
process"; yet Skender never sought to clarify UPRR's
insufficient service-of-process assertions and took no
further action on the case until UPRR filed its motion to
dismiss over a year and a half later. The trial court further
found that Skender undertook no discovery of his claims and
did not respond to UPRR's discovery requests until after
UPRR was forced to file a motion to compel. Skender does not
refute these findings. Therefore, we find his claim that he
acted with proper diligence in pursuing his claim for damages
unpersuasive. Under these facts, equitable tolling does not
apply, and we affirm the trial court's dismissal of his
FELA actions with prejudice.
Abramson and ...