Dos Santos v. Assurant, Inc.

Background

Andreia Rosa Dos Santos, proceeding without a lawyer, alleged that Assurant, Inc., Falcon Shield Property Preservation, LLC, and five unnamed individuals destroyed her original watercolor artwork. She alleged that, after her eviction on March 20, 2017, Falcon Shield, acting at Assurant’s direction, moved her belongings into a storage unit. After the first 30 days of storage expired, Falcon Shield allegedly discarded the belongings, including her artwork, on April 19, 2017.

Dos Santos brought a claim under the Visual Artists Rights Act of 1990, a federal law protecting certain rights connected to visual artworks, and claims under New York tort law. She filed the complaint on July 26, 2021. Assurant moved to dismiss, arguing that the federal claim was barred by its three-year filing deadline, that the court should decline to hear the state-law claims, and that the claims should be dismissed with prejudice.

A magistrate judge recommended dismissing the federal claim with prejudice and dismissing the state-law claims without prejudice. Both sides objected in part. Dos Santos sought reinstatement of the federal claim, extension of the filing deadline, supplemental jurisdiction over the state claims, and permission to replead.

Federal claim and filing deadline

The court held that the federal claim was untimely. The Visual Artists Rights Act claim had a three-year limitations period. The court relied on Dos Santos’s repeated allegations that all of her artwork was destroyed during the April 19–20, 2017, “trashing out” operation. It concluded that she knew of the injury by then and, at the latest, knew by Assurant’s October 23, 2017 email that the artwork had been discarded and could not be recovered. Because she filed suit on July 26, 2021, the claim was filed more than three years after she knew or should have known of the injury.

The court held that it could consider the filing deadline even though a limitations defense ordinarily must be raised by the defendant. Here, the facts establishing the defense appeared in Dos Santos’s own filings and the case had not progressed beyond the stage when the defense ordinarily had to be raised.

The court rejected Dos Santos’s arguments for extending the deadline. It held that the deadline runs from knowledge of the injury, not from discovery that the injury may support a legal claim. It also rejected her theory that the destruction was a continuing wrong, finding that the pleadings identified no destructive act during the three years before she filed suit. The court further found that the alleged communications about proper procedures did not conceal the injury itself and that her descriptions of grief, distress, hospitalization, and other emotional difficulties did not establish the extraordinary circumstances and causal connection required for equitable tolling.

Jurisdiction over state-law claims

After eliminating the federal claim, the court considered whether it could hear the state-law claims based on diversity jurisdiction. It held that Dos Santos had not shown the required difference in citizenship because the complaint alleged that she was a New York citizen and that Assurant’s headquarters were in New York.

The court also declined to exercise supplemental jurisdiction, which is a court’s discretionary authority to hear related state-law claims in a case containing a federal claim. The court had dismissed the federal claim at an early stage and had not invested the resources needed to resolve the state-law claims or determine whether they were adequately pleaded.

Disposition

The court accepted and adopted the magistrate judge’s report and recommendation in its entirety. It granted Assurant’s motion to dismiss, except that Dos Santos’s state-law claims were dismissed without prejudice. The federal Visual Artists Rights Act claim was dismissed with prejudice, and the court denied Dos Santos’s request for leave to replead that claim as futile. The court stated that Dos Santos could pursue her state-law claims in state court and closed the case.