Actually, you may still have time to file in IN state court. You can argue that the Supreme Court case disallowing your suit in federal court was analogous to having a new trial ordered. As such, the S/L is 'restarted' and runs for 3 years (or at least two years). As long as you exhaust your administrative remedies and refile your case within that time, the state case might be considered a continuation of your dismissed federal claim.
The statute doesn't specifically address whether it applies when you filed in federal court first. So, you argue that it's not equitable that plaintiffs who filed suits identical to yours in IN state court at the same time still have a case when you don't, just because you filed in federal court. You had no idea the Supremes would eviscerate your suit, but their decision shouldn't deprive you of a remedy and let your defendants get off scott free.
The IN statute of limitations on employment actions is:
IC 34-11-2-1
Sec. 1. An action relating to the terms, conditions, and privileges of employment except actions based upon a written contract (including, but not limited to, hiring or the failure to hire, suspension, discharge, discipline, promotion, demotion, retirement, wages, or salary) must be brought within two (2) years of the date of the act or omission complained of.
IC 34-11-2-2
Sec. 2. An action against the state of Indiana relating to the terms, conditions, and privileges of employment (including, but not limited to, hiring, suspension, discharge, discipline, promotion, demotion, retirement, wages, or salary) must be brought within two (2) years of the date of the act or omission complained of. This section does not:
(1) expand the time for initiating any action, including any available administrative remedies; or
(2) excuse the exhaustion of administrative remedies where required by the administrative orders and procedures law (IC 4-21.5).
IC 34-11-8-1
Sec. 1. (a) This section applies if a plaintiff commences an action and the plaintiff fails in the action from any cause except:
(1) negligence in the prosecution of the action;
(2) the action abates or is defeated by the death of a party; or
(3) a judgment is arrested or reversed on appeal.
(b) If subsection (a) applies, a new action may be brought not later than the later of:
(1) three (3) years after the date of the determination under subsection (a); or(2) the last date an action could have been commenced under the statute of limitations governing the original action;
and be considered a continuation of the original action commenced by the plaintiff.
Good luck,
Tracey
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This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.
[This message has been edited by Tracey (edited April 21, 2000).]
