In Hillman Health Center of Rochester v. Abbott Laboratories, a civil RICO case based on alleged off-label promotion of certain pharmaceuticals, the Seventh Circuit reaffirmed its view that dismissal of a complaint based on statute of limitations “at the pleading stage is an unusual step, since a complaint need not anticipate and overcome affirmative defenses, such as statute of limitations.” Noting that statute of limitations defenses usually “turn on facts not before the court at that stage of the proceedings,” dismissal based on statute of limitations is “appropriate only where the allegations of the complaint itself set forth everything necessary to satisfy” the statute of limitations defense.
Related to the statute of limitations holding, the Court also discussed but did not decide when the statute of limitations begins to run in a civil RICO case. Relying on Supreme Court holdings in Rotella v. Wood, the Seventh Circuit held that the statute of limitations begins to run upon discovery of injury. Showing that “discretion is the better part of valor,” the Court acknowledged confusion in its own jurisprudence as to whether both “injury” and identity of the offending party is necessary to trigger the statute of limitations, or simply awareness of the injury was itself sufficient. That issue the Court postponed for another day.
The moral of this story is that if you believe a lawsuit has not been timely brought, choose the right time to raise the argument.