This Article discusses the propriety of these Commerce Clause decisions with respect to individual defendants. More precisely, this Article examines two questions. The first is whether the Supreme Court's holding in Bendix was properly extended to individual resident and nonresident defendants. The other, and more difficult, issue concerns the proper application of the Commerce Clause to state statutes that toll the statute of limitations during the time a resident defendant is temporarily absent from the state. The Article focuses on whether such provisions violate the Commerce Clause regardless of the reason for the absence. Part I of this Article examines the nature and operation of state statutes that toll statutes of limitations during a defendant's absence, as well as the reasons why many states enacted such legislation. Part II discusses dormant Commerce Clause jurisprudence generally, and its application to tolling provisions based on absence from the state. This Part summarizes both the Supreme Court's decision in Bendix, which invalidated certain absence-based tolling provisions when applied to nonresident corporations, and state and lower federal court decisions that extended Bendix to individual defendants. Part III addresses the two issues identified in the previous paragraph and concludes that the extension of Bendix to individual defendants is clearly appropriate. This Part also explains why absence-based tolling violates the Commerce Clause when applied to a resident defendant who temporarily leaves the state, regardless of the purpose of the out-of-state travel. Finally, this Article concludes that absence-based tolling survives Commerce Clause scrutiny only in very limited circumstances.
Walter W. Heiser,
Can the Tolling of Statutes of Limitations Based on the Defendant's Absence from the State Ever Be Consistent with the Commerce Clause,
76 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol76/iss2/3