good afternoon it is the court i'm jacob oh say i represent marshall garber in this action i am going to serve three minutes for rebuttal time recently my time with the state of ohio we're going to have ten minutes each and so i'm going to please reserve three minutes for of all time it challenges the scope and the breadth of the dormice dormant commerce clause is applied to people moving in between states without really any anything else other than moving between states the fundamental issue think also decided this statute yeah right yeah same statute different sort of issue but yes subsequent appendix in any event the the court wrote that in order to apply that the defendant must be engaged in commerce and it really such a threshold issue for this case as to whether or not the defendant was in fact engaged in commerce when he left the state of ohio for the purpose of retirement and moved to florida doesn't make any difference that in bendix one part outside the state to start i think it does i think it makes a difference because in that particular case you had a prototypical interstate transaction you had an illinois company coming that was transacted with an ohio company to come into ohio to perform a service and subsequently left the state was not registered with the state of ohio did not have an active business in ohio was not registered did not have a process server register with the state of ohio and i think that the supreme court didn't fact draw a distinction there it drew the distinction that this was an interstate transaction therefore the dormant commerce clause applies to this transaction and applies to invalidate i revised code twenty three zero five fifteen al a quint sort of litigation with respect to this statute and post bendix has taken that a step further each time the northern district case test rb how us in about two years after b a question of bendix and corporations is the statute work the same way then today in terms of corporation has it changed at all i'm not sure that it with respect back to that well maybe another way to put it at the time of bendix did it apply equally to and corporations so for example you're in a higher corporation you do something that creates a torque and then you have corporation leaves the state would have told then yes i think it would so it wasn't directed just at out of state companies it was not and i think that in fact if you look back at sort of the prudence the with respect to the statute going back to ninety seven once you leave the expert which isn't how supreme court case interpreting the statute you had a motorist a individual but someone from michigan coming into ohio having a car accident the session limitations being told when that person left the state go back to michigan i think the same sort of principle would apply with respect to corporations what is the difference  bendix there they're doing classic commerce and people retiring is not commerce and this kind of funny thing to stay in florida would really be heard without retirees seems to affect their commerce doesn't it i think that's that may be the case that that in fact that that his retirement to florida well i think what the statute imposes a burden upon the defendant in this case the fact that he simply moved between two states in takes it takes his money to florida first of all is a holy interstate i think transaction between him and for him in ohio but furthermore i think that the the statute itself does not regulate it's not regulating commerce per se even this transaction there's no commerce being regulated by the statute as there was perhaps in bendix where you have an out of state corporation coming in or how do you here it is and i think that the statute doesn't fact survive pipe balancing as well i think it is much the same in fact if we were looking at the economic sort of burdens if any that exist in this particular case that what  see is that they're very very low in terms of any interstate regulation being applied regulated by this particular statute i understand justice scalia's concerns in his in his concurrence i think that he finds it  to do work here and it was a regulating commerce more so than it would be in this particular case where the defendant is simply moving between two states for the sake of retirement in this case with any economic are keeping this law the way it is i grant i understand why the court is not reinterpreting at that seems pretty aggressive but what's the point at serving today i think that's what it's serving and i think the state will probably here it could i think that the long arm statute certainly is is a measure that also protect citizens but this statute has been on the books for decades and the state was sure has the legislature hasn't taken upon itself to change in any meaningful way it has existed it has been repeatedly upheld by the supreme court as recently as two thousand post bendix the supreme court in a case johnson v rhodes held that the statute pleasurable when the defendant leaves the state for vacation so leaves the state for ten days and goes to kentucky it held that that was unarmed business reason for leaving the state and said that the statute is a pleasurable under those circumstances or with the fact that there might be alternative ways to accomplish something necessarily impact the commerce clause argument where the other i don't believe so only because the state has found  that this interest is something that needs to be protected recently as two thousand the supreme court has of ohio is up all the statute as constitutional that it's a pleasurable and in doing so has and given that the state the legislature has had at least that almost eighteen years since the most recent supreme court decision and nearly thirty years since bendix to in fact change the statute some way or another and has not indicated this is a statute and this is an murphy may please the court erik murphy for the state of ohio this case i guess i'd like to start with bendixen explain why i think this case is distinguishable from index index was a classic interstate commerce it was an out of state entity transacting transacting business with an in state entity and so you could it felt in the core of the dot dormant commerce clause which is about economic protectionism and about state legal rules that benefit in state but it benefit businesses at the expense of out of state businesses there the statute of limitations would have run if it was an in state business that provided the same exact boiler in the same exact services the only reason it didn't run is because it was an interstate commerce that case is not like this one in the sense of the transaction that is actually going on here in ohio doctor providing ohio services to an ohio patient that's actually an interesting transaction so that component of it is off the table in the a case of facial discrimination at least as applied to corporations and i think that the way to describe this case there's a couple ways there's either it's not commerce that it's even implicated here so that's like the mcburney way virginia public records laws clearly discriminated between in state and out of state residents about who could obtain public records but the supreme court said well that's not even about economic storm and commerce causes and even implicated it's about burdens on individuals and so it's a privileges and immunities question so we think that that's the more appropriate way to think about it because here it's a burden on an individual but i don't think you can but the classic case for the dormant commerce clause as you take two entities providing some of the situated it's providing some of the similar goods or services and one has been if it in the other is not here i don't see what that is the only transaction that is going on as i said as an in state transaction that's why the defendant in this case has to instead of relying on it out there that economic funny thing about it is the doctor arguably the sick but there she is now has a claim being in florida real distance have to leave florida with no estate tax right and if you leave florida you might be subject to a state tax in fact you move back to ohio be subject to the state's right any more or any other state tax in fact the older you get the more relevant the point any difference between states could burden moves that you should give examples forever the baldwin case which up held might be able to get rid of these out of state fishing license fees and realize that was at stake in state to in state tuition versus out of state to a smaller it's another example in state tuition burdens my mind moved out of state to have to pay higher fees if i want to go to a university in the states the examples are very numerous i don't know that there's a balancing once the last time the corps because i think a pet bendix is a pipe bouncing case and of course bendix is the statute have there been cases since then that  also davis which is the in state bonds get tax exemption but out of state bonds to not and both of those cases they upheld the distinctions under oath a pint pipe balancing the court is very split on whether a pipe balancing should apply easterbrook said in the national paint case that we see that we cited it should be as essentially a rational basis review when the burden is on interstate commerce or so as a pregnancy and as balancing burdens and benefits what burdens are really though the justification that the state has to provide should also be very low essentially going back into a rational basis review that we apply typically to economic legislation here i think it is rational basis review because any other rule would suggest that any in state vs out of state distinction would burden commerce because it burdens an individual's choice on where to live that's the price i get i guess that's the pragmatic reason why i don't think the move alone should trigger the direct commerce clause i guess that the the legal reason is what the court has repeatedly  said the direct commerce clause is about economic protectionism and i'm having a very difficult time unlike invent x where it's very clear out of state corporation providing a boiler is benefit burdened in a way that an in state corporation providing the same boiler would not be burdened and been decks that the effect of the statute here with respect to that wasn't really true in state boiler seller gets hurt by the statute the minute it relocate other words it sells a defective boiler it moves and now i guess the distinction a little bit so then stayed corp wasn't under the foreign corporation law so the foreign corporation law was the law that said if you're a foreign corporation you have to register a service of process and the fact of registering service or process process made you subject to general jurisdiction the instate into t as long as you're right as long as they state and stays the statute of limitations were would run they weren't under the foreign corporation law they were under different provision but i think i would readily admit that as part of our own domestic corporation provisions that they'd also have to register in the same way but i don't buy the in state corporation as long as it's sta and states if it was an interest in a transaction the statute of limitations would continue to run i guess the third point i would make is that this is really it's not really burdens on interstate commerce it's burdens on the defendant and so when you when you think about burdens on individuals a crossing state lines that's more of a privileges and immunities question and not a dormant commerce clause question but in the privileges and immunities context the court mcburney also dealt with the privileges and immunities clause the virginia public records law the court said that distinctions between in state and out of state are problematic under the privileges and immunities clause only with respect to fundamental rights and the problem for the defendant in this case is that doctrine question you know there's the facial discrimination there's pike balancing and i've always thought whenever i've looked in this area that there's kind of an in between there's laws that are facially neutral but have protection as a fax or are hiding a protectionist purpose do you agree that there's really three categories or do you think there's just two so i think that the supreme court has said there's effectively to what they said is there in this case though it's hard for me to see what effect is on commerce at least as applied to the facts of this case so i guess i guess though getting back to the statute of limitations idea the court has twice u pheld distinctions between in state individuals and out of state individuals with respect to the privileges and immunities clause and so if that is the relevant box we think we are in that we think that the distinction is perfectly fine we mentioned and the court suggested that there was a rational basis for the law even when you could serve an individual under the long arm statute it was essentially the justification as you mentioned when a person is outside of the state they might be more difficult to locate  and i think that everybody would agree the ups cantin and concealment portions of the law are perfectly fine and in a case by case law would be fine of if the person was very difficult to locate them that would be a reason to toll the statute of limitations and that the state can have an interest in just a judicial efficiency rather than having on a case by case basis judges assessing whether the out of state defendant was sufficiently difficult to locate just having a bright line rule that cuts down on costs and what not and that can itself be administrate concerns can be a justification as well your lights almost were just one quick question could a person in ohio or utilize the ohio long arm statute in connection with a to has not somehow applied to stop the statute of limitations for running because if it was an out of state person the statute of limitations presumably would not have run but the long arm statute could no doubt can reach out of state defendants but that's a case in the move in advance but there's a statute still controls it doesn't extend the life of the long arm statute unless you have the interstate movement that is and that's right so long of statute in the statute are different in the sense that the longer a statute is the way that ohio can reach outside of that sitters to serve people and ohio statute and it's the way to serve people as in its rules and that would apply regardless of whether the cause of action had run or not but that they may or may not have a statute of limitations difference if there are no further questions that ask the court to reverse been posed so far the beginning point here is has to be with the facts in this case that when dr mendez retired he had there's no evidence that he had knowledge of a pending lawsuit and that he wasn't merely moving money he wasn't up skydiving he wasn't concealing he moved to florida he just moved to florida period he relocated his residency we can discuss the purpose as to why he moved being due to retirement and that certainly has commerce clause implications it impacts the commerce clause just retiring from the state of ohio to the state of florida if we were to find that it does  of your position just put the dot trying to decide all the side just all states have that create benefits for people that live in the state they can be tax benefits they can reduce costs for licensing fees in state tuition and those have being in a state with out of state tax now that it's going to restrict somebody but yet no one thinks that restriction or state comer well the move from ohio to florida for the benefit to the physician himself to the person that fund and or the benefit to the state to which he goes are very clear impact on commerce yeah i mean he leaves ohio he loses a benefit that one year period would run he leaves florida he loses a benefit in our state tax then i'm just i'm just making the point you're the argument but it just seems to prove too much because all states have unique benefits for their citizens and under your theory of the case that restricts interstate commerce because they're just incentivized to leave because they'll lose the benefit well that's where the balances there's an incentive for him to leave first of all he's not aware that there's a lawsuit pending so he's not aware that he's giving up or surrendering the one y statue of limitations it's an unknown and so when he leaves it's for the benefit of the ability to retire how did this affect commerce if you didn't affect his decision at all you just told me he didn't know it does and then i pop i didn't mean to suggest that it does affect his decision when people retire from the state of ohio not merely for the warmth that's a big reason to go to go south but there are tax implications or benefit the individual and the benefit the state that he goes to so that any tax that he pays down there his residence down there and i'm granting there's some commerce i agree even retirement as commerce i get that well the implication of the commerce clause merely just because of that it's the burden that we're talking about the the employer commerce clause is implicated by the actual movement to mean there's a long line of cases going back to edwards and heart of atlanta motel that we've cited in our brief that do talk about the movement of people across boundaries and that does in and of itself implicate the commerce clause the question then is whether any restraint on their ability to move across state lines  discriminatory and an impermissible burden on the commerce clause and that's that's really the discussion that we're having at this point and the with regard to that doesn't quite balancing you should require some evidence that there's a burden i mean this was a motion to dismiss case how do we i mean i my first instinct is i don't think there's a lot of ohio doctors having second thoughts retiring to florida based on the tolling provision that would really surprise me you know if they were told about it just as they were entering cincinnati and realize what's about to happen i think they will until the idea really is of whether or not these physicians can be served within the period of the statute of limitations that applies to them and in all the cases that we've looked at there's whether it's bendix tests are even johnson issues a johnson that where the physician moves relocates and  implicates commerce clause the the benefit i'm sorry the discriminatory effect is in fact that physicians would be prevented they would have to buy different surance they'd have to buy tail insurance maybe other implications here consequences where they do have to now can be concerned about that in addition to also knowing that there's a long arm statute that subjects them to the jurisdiction of the state of ohio so that's part of the balancing  and two it would be an unreasonable burden for physicians now in their estate planning to a level higher tonight we're doing not leave ohio have to be concerned about whether i have to tail insurance that goes for perpetuity so the idea here is that they are subject to the potential lawsuit because a statue of limitations does not run have their own estates may be subject to a lawsuit some at some point the statute i've said i quite get what you're saying but it only applies to services provided during the last year in the state right because everything they provided more than a year before they left the have run right because they would still be there except in the case of perhaps a doctor menendez who's a pediatrician who where the statue of limitations does not run a patient reads and here the issue here was regards care that was provided on into two thousand and ten and mr garber didn't become eighteen until two thousand and thirteen didn't file a lawsuit until exactly one year after that and so we have a timeframe of you know five years there where the doctor is still subject to how medical malpractise policies work though i thought they would cover a tie and they don't they don't concern themselves with tolling a statue of limitations they have coverage for you provide services and if you provided services within that time in your suit you invoke the policy so though that's the difference between the claims made policy and occurrence policy and it depends on what you have so insurance companies provide different products to physicians based upon their sort of their online for this particular problem could happen and so these are consequences that are very important to the physician making decisions about where to go where to retire when to retire if they want to retire and it's not the solely about retirement in the physician could have retired to cleveland maybe he likes you know the shores of lake erie wants to go up there the point being is that it's the relocation that's important that they he left permanently in the state of ohio and he went somewhere else and it wasn't to abscond to conceal himself and i think the retirement is part of the balancing consideration but the fact that he left permanently is important in the consideration here the johnson case touched on that in the concurrence in that opinion did touch on whether this because the statute didn't mention you know that they left temporarily or for business purposes why expand it to go to that length to that extent and in fact it is about movement it's about the movement permanently of an individual from the state of ohio to florida and i think that's probably the paramount issue are you focused just on commerce clause or are you considering right to travel privileges and immunities how do you want to think about this well and i know you want to think helpfully about it but what doctrine with you you more difficult and required perhaps more evidence more information doesn't mean it's off the table in the future if there's a motion you know of cases remanded we have a motion for summary judgment opportunity but at this point you know the issue would be that we've raised is that application of this tolling statute under these circumstances is unconstitutional under these specific circumstances  missouri the tolling statute applies because service has to occur before the statute of limitations expires so in that regard that makes  but for the most part there aren't a lot of states that have this broad of a tolling statute and i can't tell you what they are for top of my head that it goes to in perpetuity is that a feature of your i mean do you think that's a strength of your argument here arguably goes yes right yes i think to subject the party to infinite potential liability without the benefit of a statue of limitations that anybody else has the benefit of the you know nonresidents have the same benefit and in ohio we have a long arm statute that permits i mean there's now that goes back to the point there's no fundamental right to a statue of limitations you know there's no fundamental right to it but it is a body it is a state of nature we're all subject to liability and perpetuity it's only because of the grace of creating these limitations periods that we're yeah i think that the you know it's recognized that in you know i think all of these cases that statue limitations is not a fundamental right but it is necessary for the functioning you know the distinct the distinguishing feature here is that the most recent analysis of this statute in the state of ohio is really with the johnson course johnson court at the highest level and it did recognize limitations and apply for out of state residents is that the absence needs to be temporary and for non business purposes both and judge gone found that based upon the pleadings in this case is that  we need to go there for this analysis is retirement is and has to be considered as an impact on the commerce clause and so based upon in these circumstances i wonder if you could take off those circumstances that you say circumstance to circumscribe this this country this statute in in an unconstitutional for what do you what do you say they are in the new circumstances what are some of these circumstances would be the statute the tolling statute would be unconstitutional under these circumstances where a i would also suggest that you know the reason for the move is for retirement which impacts the congress because each of these is crucial i don't think i don't think the last is ok but the m pac fellow or most of florida when it would it would but the state doesn't have a so it's and that's a good point i mean this is so the statue limitations doesn't begin to run for a pediatrician until the patient gets to the age of aware back in michigan what's going on admission in state university and the state legislature is falling all over themselves to make several actions related to such child abuse things twenty years thirty years the difficulty it places on an individual to marshal witnesses and things of that nature when these matters get dragged out to law true and here if the statue limitations was twenty years  a party believes that they have a lawsuit that they they want to file they can file that lawsuit within twenty years they just have to serve the party within a year before the statue of limitations expires or however you know they have to serve protected it's hard assist somebody when they leave well so so this is an interesting this is an interesting point because you know in the modern era we have things like google we have other tools in our possession that to put a person's name and go on to the you know when i'm filing a lawsuit on behalf of a party you go and against a physician you go on the medical state board and you look to see if their license is active or if there are any actions taken against th physicians license you can google them to see if they where they live you know service is a really important part of filing a lawsuit i filed last you know i'm not just a defense lawyer and i defy file lawsuits too and it's one of the areas that is you know very concerning and lawyers have to be aware of their service obligations make sure that the party has been served and there and there are mechanisms to do that in this state and that is you know and also the issue may have noticed in our did mention this in our brief that you know the plaintiffs were on notice of these defenses the answer is in our answer to the complaint denied his employment with pediatric associates of ashland  affirmative defenses were identified asserting that there was a lack of service so you know there's there is information available the docket itself didn't have any evidence that dr menendez himself had been served the complaint had been mailed or served to his former place of employment but under ohio law that's not adequate so there are a lot of mechanisms to permit a pla to serve a defendant within the statute of limitations you know discovery during that year so you have a year to serve discovery opportunities depositions things things of that nature that are available so when we are w the availability of tools for litigants i mean that's one area and so and they just weren't used in this case so that's if if there are no other questions  limitations with respect to the appellee in this case up to eighteen or nineteen years in other words he could move to florida tomorrow or like he did in two thousand and fourteen and if the person that he had been treating his patient was a minor which it probably wasn't he's a pediatrician invitation for that particular person is going to be if the child was young perhaps eighteen years in other words he's going to be a subject a liability in the state of florida for an additional eighteen years and so this statute really is no more a disincentive to move from state to state then that particular statute is in the same would be true of an incompetent person these are all of mechanisms by which the statue limitation with respect to certain people are extended for a long period of time regardless of whether or not it affects excuse me regardless of whether or not the the appellate would leave the state for any real reason so it's not necessarily disincentive this particular statute is necessarily disincentive for him to leave the state and probably should make plans in the event that he was treating young people that to do to do that i want to follow up on a question you asked about other states in terms of cases that have dealt with similar facts we cite  not enough to simply treat in state and out of state interests differently it's there some economic proponent or regulation young goes as far as to say that the freedom of information act requests are not they're not