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Culbert v. Ciresi6/17/2003
. Alternatively, Culbert argued that because the defendants accepted service of the unauthenticated summons and complaint and engaged in months of discovery, they should be estopped from asserting the statute of limitations as a defense. The court granted the defendants' motion to dismiss with prejudice. Culbert appeals.
DISCUSSION
I. Tolling of the Statute of Limitations
. Culbert argues that the federal action tolled the statute of limitations. This involves the interpretation and application of Wisconsin's tolling statutes, which is a question of law we review independently. State v. Murdock, 2000 WI App 170, , 238 Wis. 2d 301, 617 N.W.2d 175.
. Wisconsin Stat. § 893.15 provides:
(2) In a non-Wisconsin forum, the time of commencement or final disposition of an action is determined by the local law of the forum.
(3) A Wisconsin law limiting the time for commencement of an action on a Wisconsin cause of action is tolled from the period of commencement of the action in a non-Wisconsin forum until the time of its final disposition in that forum.
Therefore, we must look to the law of the federal court to determine when the Minnesota case was commenced.
Federal Rules of Civil Procedure 3 states that a civil action is commenced by filing a complaint with the court. Culbert urges us to stop our analysis here and conclude that because she filed the federal action on April 6, 2000, the statute of limitation tolled from that time until it was dismissed, and the appeal time expired on July 26, 2000, plus an additional 123 days for the mandatory mediation period. See Wis. Stat. § 893.54. Therefore, the statute of limitations would not have expired until May 14, 2002. Because the present action was filed on March 13, 2002, Culbert claims she was within the statute of limitations.
. However, Culbert's federal action was voluntarily dismissed. In federal courts, a voluntary dismissal means an action is a nullity. Fed. R. Civ. P. 41(a)(1); see also Robinson v. Willow Glen Acad., 895 Fed.2d 1168 (7th Cir. 1990). In Robinson, the court held that a voluntarily dismissed federal action does not toll the Wisconsin statute of limitations. Id. at 1169. This is because a voluntarily dismissed federal action is a nullity, having no effect on a statute of limitations. Id.
. Culbert claims Johnson v. County of Crawford, 195 Wis. 2d 374, 536 N.W.2d 167 (Ct. App. 1995), not Robinson, governs this case. In Johnson, we stated, "We see nothing ... that exempts certain causes of action [from tolling] because the first action to enforce that cause of action was voluntarily dismissed." Id. at 381. However, in Johnson, the original action was filed in state court. Id. at 378. Here, the original action was filed in federal court. Thus, Johnson does not apply to Culbert's federal action.
. Culbert further argues that, while federal law determines when the action was commenced, we should use Wisconsin law to determine the effect of voluntary dismissal on the tolling of the statute. However, Fed. R. Civ. P. 41(a)(1) states that an action that is voluntarily dismissed in federal court is not commenced. We cannot simply ignore the federal rule, as Culbert urges us to do. It is integral to determining when the federal action was commenced, which is what Wis. Stat. § 893.15(2) directs us to examine. Consequently, because Culbert's federal action was never commenced under federal law, the statute of limitations was not tolled.
II. Estoppel
. Alternatively, Culbert argues that the defendants' actions in the first Wisconsin case should estop them from raising the statute
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