Opinion
Civil Action Number 05-cv-02674-RPM.
July 3, 2006
ORDER DENYING WAL-MART'S MOTION TO DISMISS
On May 2, 2006, defendant Wal-Mart Stores, Inc., filed a motion to dismiss all of the plaintiffs' claims under Fed.R.Civ.P. 12(b)(6) on the sole ground that the claims are barred by the respective statutes of limitations applicable to them. Although the statute of limitations is an affirmative defense under Rule 8(c) the moving defendant contends that all of the claims made in the complaint are dependent upon an arrest made on October 6, 2002, and this action was not initiated until more than three years later, December 30, 2005. The plaintiffs filed their response on June 8, 2006, and the reply from Wal-Mart Stores, Inc., was filed June 30, 2006.
The plaintiffs have alleged that the arrest resulted from the action of Wal-Mart employees on their accusations that Jacek Jaroszynski was shoplifting and that he was prosecuted in Adams County, Colorado, through two trials, each of which ended in a mistrial, the last of which began March 31, 2004. The prosecution voluntarily dismissed the case against Mr. Jaroszynski on January 14, 2005. The plaintiffs assert that the pending prosecution should be considered either tolling the respective statutes of limitations or that the claims did not ripen until the criminal charges were dismissed, citing Heck v. Humphrey, 512 U.S. 477 (1994). That case is not directly controlling but the plaintiffs have an arguable position. Accordingly, it is
ORDERED that Wal-Mart Stores, Inc.'s motion to dismiss is denied and it is
FURTHER ORDERED that the plaintiffs' request for attorney's fees is denied.