Former NBA Star Shaquille O’Neal can rest a little easier in his retirement after a federal judge from the Central District of California found that the Commerce Clause in the U.S. Constitution superseded California Code of Civil Procedure Section 351, which tolls the statute of limitations, where an accused party has moved outside that state.
The court, thus, dismissed with prejudice the claim of music industry entrepreneur Robert Ross, who had alleged that on or about February 11, 2008, that O’Neal and co-defendant Mark Stevens directed members of the Main Street Mafia Crips gang to kidnap, attack, rob, and threaten him. As a result of the alleged conduct, Ross claimed that he suffered physical injuries and emotional distress.
In addition, the plaintiff also alleged that on or about August 21, 2007, he entered into an oral contract with the defendants, whereby Ross would locate artists for the defendants’ record label in exchange for one-half of the profits generated by the artists. The plaintiff alleged that prior to February 11, 2008, that he delivered an artist (Ray J) to the defendants who signed the artist to a contract, but refused to pay him.
On July 15, 2011, Ross filed a complaint in Los Angeles Superior court against Defendants, alleging the following: (1) False Imprisonment; (2) Assault and Battery; (3) Robbery-Conversion of Personal Property; (4) Intentional Infliction of Emotional Distress; (5) Breach of Contract.
Ten days later, O’Neal removed the case to federal court. He subsequently filed a Federal Rule of Civil procedure 12(b)(6) motion to dismiss the complaint. His core argument was that the plaintiff’s claims were “all time-barred because the statute of limitations has run on all of his claims.” The plaintiff cited the aforementioned Section 351, which specifically provides:
“If, when the cause of action accrues against a person, he is out of the state, the action may be commenced within the term herein limited, after his return to the state, and if, after the cause of action accrues, he departs from the state, the time of his absence is not part of the time limited for the commencement of the action.”
Cal. Code Civ. Pro. § 351.
The court considered O’Neal’s argument that Section 351 “cannot be constitutionally applied in this case because of the burden it would pose on interstate commerce”. See Bendix Autolite Corp. v. Midwesco Enter., Inc., 486 U.S. 888, 108 S. Ct. 2218, 100 L. Ed. 2d 896 (1988).
The Bendix court held: “Where a State denies ordinary legal defenses or like privileges to out-of-state persons or corporations engaged in commerce, the State law will be reviewed under the Commerce Clause to determine whether denial is discriminatory on its face or an impermissible burden on commerce.”
The plaintiff’s argument against the application of Bendix was that “applying the tolling statute in this case does not burden interstate commerce because the claims do not arise from the defendants’ interstate commerce activities,” wrote the judge in the instant opinion.
“However, a California appellate court recently held that even if the alleged claims do not arise out of the defendant’s interstate commerce activities, the application of Section 351 to toll the statutes of limitation violates the commerce clause by ‘penaliz[ing] people who move out of state by imposing a longer statute of limitations on them than on those who remain in state.’ Heritage Marketing & Ins. Services, Inc. v. Chrustawka, 160 Cal. App. 4th 754, 763, 73 Cal. Rptr. 3d 126 (2008). The court in Heritage explained that the ‘commerce clause protects [people] from such restraints on their movements across state lines.’ Id. Therefore, ‘by creating disincentives to travel across state lines and imposing costs on those who wish to do so, the statute prevents or limits the exercise of the right to freedom of movement.’ Thus, the application of Section 351 to penalize defendants for moving out of state violated the commerce clause.
“… (E)ven if the plaintiff’s claims do not arise out of O’Neal’s interstate commerce activities, the burden imposed on interstate commerce outweighs the State’s interest in alleviating the hardship imposed on a plaintiff when serving an out-of-state defendant. Between February 11, 2008, and February 11, 2011, O’Neal was engaged in interstate commerce as a professional basketball player in the NBA. Thus, the application of Section 351 would require O’Neal to choose between continuing his employment with the NBA or remaining in California for three years to wait for the statutes of limitation to expire, thereby creating an impermissible burden on interstate commerce. See Papenthien v. Papenthien, 1995 WL 819033 (S.D. Cal. 1995), rev’d on other grounds by 120 F.3d 1025 (9th Cir. 1997)(finding that Section 351 could not be constitutionally applied to a defendant who was required to fly throughout the United States for his job as an airline pilot).”
The plaintiff’s argument that O’Neal “was only required to play in basketball games for 226 days out of the year (and) … that O’Neal provides no evidence that he was engaged in interstate commerce for the 139 days of the year when he was not playing in basketball games” was unavailing.
“(C)ommon sense dictates that even if O’Neal was not actually playing in basketball games, he was practicing, training, and otherwise engaged in his employment with the NBA,” wrote the court. “Further, O’Neal argues, and the plaintiff does not deny, that the State’s interest is weakened by that fact that O’Neal could have been served pursuant to California’s long arm statute. Moreover, even if the long arm statute were not invoked, the plaintiff could have easily served O’Neal on one of his many visits to California for professional basketball games, which were published months in advance.
“Accordingly, the burden on interstate commerce imposed by Section 351 outweighs the articulated state interest in this case, and the application of Section 351 to toll the statutes of limitations on the plaintiff’s claims would violate the commerce clause. Therefore, all of the plaintiff’s claims are barred by the applicable statute of limitations and the Complaint is dismissed.”
Robert Ross v. Shaquille O’Neal et al; C.D. Cal.; 2:11-cv-06124-JHN –Ex, 2011 U.S. Dist. LEXIS 125250; 10/17/11.
Attorneys of Record: (for defendants) Michael Kump and Jonathan Steinsapir at Kinsella Weitzman Iser Kump & Aldisert in Santa Monica.
