Al Shimari v. Dugan et al

Filing 76

MEMORANDUM ORDER that Defts CACI International, Inc. and CACI Premier Technology, Inc.'s 44 Motion for Partial Summary Judgment Based on the Statute of Limitations is DENIED (see Order for details). Signed by District Judge Gerald Bruce Lee on 11/25/08. (pmil) Modified on 11/28/2008 to add text(pmil).

Al Shimari v. Dugan et al

Doc. 76

IN THE UNITED

STATES

DISTRICT COURT

FOR THE

EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

L

E

Shuhail Najim Abdullah al Shimari, et al., Plaintiffs,

) )

NOV 2 5 2008
CLERK, U.S. DISTRICT OOURT
Al FXANDRIA. VIRGINIA

)

)

CACI
Inc.,

International,

Inc.

) )
) )
)

Civil Action No.

l:08cv827

and CACI

Premier Technology,

)
Defendants. )

MEMORANDUM ORDER

THIS MATTER is before the Court on Defendants

CACI

International,

Inc.

and CACI Premier Technology,

Inc.'s Motion

for Partial Summary Judgment Based on the Statute of Limitations.
Defendants move for summary judgment as to Plaintiffs Mr.
Mr. Al-Zuba'e, and Mr.

Rashid,

Al-Ejaili's common-law tort claims because

those claims are barred by the applicable statute of limitations.

The issue before the Court is whether cross-jurisdictional
tolling applies under Virginia law to the common-law tort claims of putative plaintiffs in a class action lawsuit filed in federal
court where certification is later denied.

Plaintiffs Mr.

Rashid,

Mr.

Al-Zuba'e,

and Mr.

Al-Ejaili were

prisoners at Abu Ghraib prison in Iraq.
were tortured by Defendants' employees

They claim that they
and others while

imprisoned.
2003

Mr.

Rashid was first imprisoned on September 22,
2005. Mr. Al-Zuba'e was first

and released on May 6,

imprisoned on November 1,

2003 and released on October 24,

2004.

Dockets.Justia.com

Mr. Al-Ejaili was first imprisoned on November 3,
released on February 1, 2004.

2003,

and

On June
Corp., No.

9,

2004,

a class action lawsuit,
(S.D. Cal. June 9,

Saleh v.
was

Titan

04-cv-1143

2004),

filed on

behalf of a class of Iraqis against Titan Corporation,

CACI

International,

and several of their subsidiaries asserting civil

claims of torture.

The Saleh action was twice transferred,

first

to the United States District Court for the Eastern District of

Virginia and finally to the United States District Court for the District of Columbia. The Saleh complaint was amended three motion for class certification

times before the Saleh plaintiffs'
was denied on December 6, 2007.

Prior to any Virginia caselaw recognizing cross-

jurisdictional tolling,

the United States Court of Appeals for
Danek

the Forth Circuit engaged in predictive analysis in Wade v. Medical, Inc., holding that Virginia would not adopt cross-

jurisdictional tolling.

182 F.3d 281

(4th Cir.

1999).

There,

the court affirmed summary judgment against the plaintiffs,

finding that their action was not equitably tolled during the
pendency of federal class actions against some of the same

defendants.

Id.

The Wade court declined the application of

cross-jurisdictional tolling,
adopt it for three (3)

predicting that Virginia would not
specifically: 1) because

reasons,

Virginia has no interest in promoting the efficiency and economy
of class action procedures in other jurisdictions; do so would encourage forum shopping; and 3) 2) because to "it would

because

render Virginia's

limitations period effectively dependent on the
in other jurisdictions." Id. at 287-88.

resolution of claims

The court

further held that,

"in any case

in which a state

statute of

limitations applies-whether because

it is

'borrowed'

in a federal question action or because

it applies under Erie in

a diversity action-the state's accompanying rule regarding equitable tolling should also apply."
Two years later, however,

Id.

at 289.
Court of Virginia held

the Supreme

in Welding,
general

Inc.

v.

Blade County Service Authority that the
section 8.01-229(E)(1) of the

tolling provision of

Virginia Code applied to actions Welding, 541 S.E.2d 909
(E)(1)

filed in federal courts. The Welding court found that
which at

(Va.

2001).

"Subsection

applies a tolling period to

xany action' Id.

abates or is dismissed without determining the merits."
912. The court went further to explain that there is "no

language

in Code

§

8.01-229(E)(1)

which limits or restricts its Id.

its

application to a specific type of action or precludes applicability to actions
Here,

filed in a federal court."

the Court denies Defendants'

Motion for Partial Mr. Al-Zuba'e, and

Summary Judgment as to Plaintiffs Mr.

Rashid,

Mr.

Al-Ejaili's because the Saleh class action lawsuit equitably
limitations on their common-law tort

tolled the statute of

claims.
member of

It

is undisputed that Plaintiff Mr.
There

Al Shimari

is a

the Saleh class.

is no material difference Rashid, Mr.

between the claims of Mr.
Al Zuba'e, and Mr.

Al Shimari and those of Mr.
they are all members of

Al-Ejaili;

the Saleh

class.

As

the

Wade decision makes

clear,

the Court is required

to apply Virginia's

equitable tolling rules whether jurisdiction

is based on federal question or diversity.
expressly recognized cross-jurisdictional As a result, the filing of the Saleh class

In Welding,
tolling

the court

in Virginia.

action equitably

tolled the statute of
claims. Therefore, it

limitations on Plaintiffs'
is hereby

common-law tort

ORDERED that Defendants

CACI

International,

Inc.

and CACI

Premier Technology,

Inc.'s Motion for Partial Summary Judgment
Limitations is DENIED.

Based on the Statute of

The Clerk
Counsel.

is directed to forward a copy of

this Order to

Entered this C*

day of November,

2008.

1st
Gerald Bruce Lee

United States District Judge

Alexandria,

Virginia