Employment Law Questions? Ask an Employment Lawyer.
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From what date does the clock start ticking? The last day of the written contract? The day of wrongful termination?
The SOL starts running from the date of the "injury" or "breach" which here would be the date of the wrongful termination.
Could it be argued that the 5-year time-clock is then moved further out due to that?
No, the SOL is fixed in stone and if someone doesn't file a legal action prior to it expiring, then they lose the right to pursue a cause of action. But if you have already filed a lawsuit, then it doesn't make any difference how long it takes to finally get to court. The SOL is just the time limit for someone to start a lawsuit, not conclude it. So as long as you filed suit within the SOL for the breach, then you aren't affected by the SOL.
That means that the case is dismissed forever so it can't be refiled. If it was dismissed without prejudice, then it could be refiled as long as the SOL hasn't run. They are likely trying to dismiss for "failure to prosecute" which means that you haven't moved forward with the lawsuit in a long time and taken any action. Courts like lawsuits to move along in an orderly and timely manner and that can give grounds to dismiss.
However, you could respond to their motion by defending based on the defendant continually changing attorneys so as to circumvent your efforts to proceed.
Assuming that you responded and defended, the judge would likely dismiss their motion but put you under a deadline to either move forward with the case or it would be dismissed.
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