Island Insteel Systems, Inc. v. Waters ( 2002 )


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  •                                                                                                                            Opinions of the United
    2002 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    7-17-2002
    Island Insteel Sys v. Waters
    Precedential or Non-Precedential: Precedential
    Docket No. 00-2713
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    Recommended Citation
    "Island Insteel Sys v. Waters" (2002). 2002 Decisions. Paper 404.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2002/404
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    PRECEDENTIAL
    Filed July 17, 2002
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 00-2713
    ISLAND INSTEEL SYSTEMS, INC.;
    ISLAND INSTEEL CONSTRUCTION, INC.;
    PETER W. CLARK; THE PETER W. CLARK FAMILY
    TRUST; ALAN R. FEUERSTEIN, Appellants
    v.
    DARRIN WATERS; TAMMY WATERS; TAMMY MOST;
    PANELS, INC.; CONCRETE PANELS CONSTRUCTION,
    INC.; POOL VILLAS CONDOMINIUM ASSOCIATION,
    AN UNINCORPORATED ASSOCIATION UNDER THE LAWS
    OF THE UNITED STATES VIRGIN ISLANDS; UNKNOWN
    DEFENDANTS A THROUGH Z
    On Appeal From the District Court of the Virgin Islands
    (D.C. Civ. No. 99-cv-00017)
    District Judge: Honorable Raymond L. Finch, Chief Judge
    Argued December 3, 2001
    Before: BECKER, Chief Judge, NYGAARD and
    COWEN, Circuit Judges.
    (Filed July 17, 2002)
    ALAN R. FEUERSTEIN, ESQUIRE
    (ARGUED)
    Feuerstein & Smith, LLP
    17 St. Louis Place
    Buffalo, NY 14202-1502
    Counsel for Appellants
    JAMES M. DERR, ESQUIRE
    (ARGUED)
    28-29 Norre Gade
    P.O. Box 664
    St. Thomas, VI 00804
    DANIELLE C. COMEAUX, ESQUIRE
    Hodge & Francois
    1340 Taarnederg Road
    Charlotte Amalie, St. Thomas
    United States Virgin Islands 00802
    Counsel for Appellees
    OPINION OF THE COURT
    BECKER, Chief Judge.
    In this Lanham Act trademark infringement action,
    plaintiffs appeal from an order of the District Court of the
    Virgin Islands granting defendants’ motion to dismiss under
    Federal Rule of Civil Procedure 12(b)(6). Plaintiffs allege
    that defendants’ unauthorized use of their "Insteel" trade
    name, which refers to a panel system of building
    construction, violates S 43(a) of the Lanham Act, 15 U.S.C.
    S 1125(a). The District Court held that it was clear from the
    complaint that plaintiffs’ claims are subject to the two-year
    statute of limitations governing actions for fraud under
    Virgin Islands law and that their filing of an earlier identical
    action in the United States District Court for the District of
    Puerto Rico, which was dismissed for lack of personal
    jurisdiction, did not equitably toll the statute of limitations.
    Since the complaint in this case was not filed within the
    two-year limitations period, the District Court dismissed
    plaintiffs’ claims as time-barred.
    2
    This appeal presents two main questions. First, we must
    determine the appropriate limitations period for these
    trademark infringement claims under S 43(a) of the Lanham
    Act. Second, we must determine whether filing suit in a
    court that lacks personal jurisdiction may equitably toll the
    statute of limitations if plaintiffs refile the lawsuit in a court
    that has jurisdiction. Both parties agree that because the
    Lanham Act lacks a statute of limitations, we must borrow
    a statute of limitations from Virgin Islands law. Plaintiffs
    submit that the most appropriate statute of limitations
    under Virgin Islands law is the catch-all six-year statute of
    limitations for "[a]n action upon a liability created by
    statute" that does not fall within any of the specifically
    enumerated limitations periods. 5 V.I.C. S 31(3)(B).
    Defendants respond that the cause of action under Virgin
    Islands law most analogous to plaintiffs’ trademark
    infringement claims is either an action for common law
    fraud or an action for deceptive trade practices in violation
    of 12A V.I.C. S 101, both of which are subject to a two-year
    limitations period.
    Because plaintiffs have failed to identify a specific
    statutory cause of action under Virgin Islands law that is
    analogous to their Lanham Act claim and is subject to the
    catch-all six-year limitations period for actions upon a
    liability created by a statute that lacks a statute of
    limitations, we decline to apply the six-year statute of
    limitations. That conclusion relegates us to a choice
    between an action for fraud and an action for deceptive
    trade practices, both subject to a two-year statute of
    limitations under Virgin Islands law. But we still must
    decide which cause of action more closely resembles
    plaintiffs’ claims since the statute of limitations for fraud
    begins running on the date plaintiffs discovered the fraud,
    whereas the statute of limitations for deceptive trade
    practices begins running on the date the actionable
    conduct occurred.
    We hold that the cause of action under Virgin Islands law
    most analogous to a claim for trademark infringement
    under S 43(a) of the Lanham Act is the cause of action for
    deceptive trade practices in violation of 12A V.I.C.S 101.
    Like a trademark infringement action under S 43(a), but
    3
    unlike an action for common law fraud, an action for
    deceptive trade practices does not require proof of scienter.
    Moreover, while a common law fraud claim requires a
    plaintiff to prove actual reliance, an action for deceptive
    trade practices simply requires proof that the practice at
    issue has the "tendency or effect of deceiving or misleading
    consumers," which more closely resembles the"likelihood of
    confusion" element that is the touchstone of aS 43(a) claim.
    Accordingly, plaintiffs’ claims in this case are subject to a
    two-year statute of limitations, which began running on the
    occurrence of the actionable conduct.
    While plaintiffs concede that the allegedly unlawful
    conduct occurred more than two years before the date they
    filed this suit, invoking the doctrine of equitable tolling,
    they submit that even under this statute of limitations their
    suit is not time-barred since they filed an identical action in
    the District of Puerto Rico within the two-year limitations
    period. That suit was dismissed for lack of personal
    jurisdiction. Defendants respond that because the first
    action was dismissed for lack of personal jurisdiction, the
    District Court properly held that the filing of that action did
    not equitably toll the statute of limitations. Whether filing
    suit in a court that lacks personal jurisdiction over a
    defendant may equitably toll the statute of limitations
    presents us with a question of first impression under Virgin
    Islands law. Because: (1) there is no statute on point; (2)
    the American Law Institute Restatements of the Law are
    silent on the issue, see 1 V.I.C. S 4; and (3) there is a split
    of authority among those courts that have addressed the
    question under the common law of other states, we must
    select the rule that we believe to be better and more
    consistent with Virgin Islands jurisprudence and policy. See
    Polius v. Clark Equip. Co., 
    802 F.2d 75
    , 77 (3d Cir. 1986).
    We hold that under Virgin Islands law, the statute of
    limitations for a second action may be equitably tolled by
    the filing of an earlier action dismissed for lack of personal
    jurisdiction if: (1) the first action gave the defendant timely
    notice of plaintiff ’s claim; (2) the lapse of time between the
    first and second actions will not prejudice the defendant;
    and (3) the plaintiff prosecuted the first action in good faith
    and diligently filed the second action. This doctrine of
    4
    equitable tolling preserves the protections that statutes of
    limitations are intended to afford to defendants. At the
    same time, it avoids the unfairness to plaintiffs that would
    occur if plaintiffs who diligently but mistakenly prosecute
    their claims in a court that lacks personal jurisdiction find
    their claims time-barred when they refile in a proper
    jurisdiction.
    Application of this equitable tolling doctrine, like most
    equitable doctrines, is committed to the discretion of the
    district court in the first instance. Moreover, how the issue
    should be resolved in this case is far from clear. Therefore,
    we will vacate the order of the District Court and remand
    the case to the District Court to determine whether the
    plaintiffs satisfy the elements of this equitable tolling
    doctrine.
    I.
    Plaintiffs are Island Insteel Systems, Inc., Island Insteel
    Construction, Inc., and individual shareholders of those
    corporations, who allege that defendants unlawfully used
    the "Insteel" trade name. The defendants are Panels, Inc.,
    Concrete Panels Construction, Inc., and their individual
    officers and shareholders, who were also officers and
    shareholders of the plaintiff corporations. In May 1994, the
    individual plaintiffs and individual defendants, then in
    business together, formed the plaintiff corporations to
    market in the U.S. Virgin Islands and the Caribbean the
    "Insteel" panel system of building construction distributed
    by Insteel Construction Systems, Inc., of Brunswick,
    Georgia ("Insteel Georgia"), which is not a party to this suit.
    In September of 1995, Hurricane Marilyn devastated the
    Virgin Islands, causing severe property destruction. Homes
    constructed using the "Insteel" panel system, however,
    withstood the hurricane with little damage. Due to the
    "Insteel" buildings’ survival of the hurricane, the plaintiff
    corporations were able to secure more than $500,000 worth
    of building contracts in St. Thomas and elsewhere.
    Plaintiffs were unable to begin work on these contracts
    until they obtained approval of their construction system
    under the new building code adopted by the U.S. Virgin
    5
    Islands in response to the severity of damage caused by the
    hurricane. The delay in plaintiffs’ construction pending
    their approval caused a backlog of construction work, so
    that by early 1996, the plaintiff corporations’ work
    calendars were completely full.
    Plaintiffs allege that in January 1996, the individual
    defendants formed the defendant corporations, and,
    unbeknownst to plaintiffs, began to use the Insteel trade
    name to promote the business of the defendant
    corporations. On November 17, 1997, having learned of this
    usage, plaintiffs filed a complaint against defendants in the
    District Court for the District of Puerto Rico alleging that
    defendants’ unauthorized use of the Insteel trade name
    violated S 43(a) of the Lanham Act. In an order docketed on
    October 30, 1998, that court dismissed the complaint for
    lack of personal jurisdiction. On January 28, 1999,
    plaintiffs refiled their action in the District Court of the
    Virgin Islands.
    The District Court granted defendants’ 12(b)(6) motion to
    dismiss plaintiffs’ claims as time-barred under the two-year
    statute of limitations governing actions for fraud under
    Virgin Islands law. Although plaintiffs had filed suit in the
    District of Puerto Rico within the two-year limitations
    period, the District Court held that the filing of that action
    did not equitably toll the statute of limitations, since the
    action was dismissed for lack of personal jurisdiction.
    Plaintiffs appeal from the District Court’s order granting
    defendants’ motion to dismiss. The District Court had
    jurisdiction over this matter pursuant to 28 U.S.C.S 1331.
    We have appellate jurisdiction pursuant to 28 U.S.C.
    S 1291. We review de novo the District Court’s order
    dismissing plaintiffs’ claims under Rule 12(b)(6). See A.D.
    Bedell Wholesale Co. v. Philip Morris Inc., 
    263 F.3d 239
    , 249
    n.25 (3d Cir. 2001).
    II.
    We must first determine the statute of limitations for
    trademark infringement claims under S 43(a) of the Lanham
    Act, 15 U.S.C. S 1125(a). Plaintiffs’ claims are predicated on
    defendants’ allegedly unlawful use of the "Insteel" trade
    6
    name, a "trade name" being "any name used by a person to
    identify his or her business or vocation." Lanham Act S 45,
    15 U.S.C. S 1127. In referring to plaintiffs’ claims as claims
    for "trademark" infringement, we adopt the common usage
    of the term "trademark" to refer generically to "the entire
    field of trademarks, service marks, trade names, and trade
    dress," Platinum Home Mortgage Corp. v. Platinum Fin.
    Group, Inc., 
    149 F.3d 722
    , 726 n.1 (7th Cir. 1998), all of
    which a business may appropriate to its exclusive use
    under S 43(a).
    Under the trademark infringement prong of S 43(a):
    Any person who, on or in connection with any goods or
    services, or any container for goods, uses in commerce
    any word, term, name, symbol, or device, or any
    combination thereof, or any false designation of origin,
    false or misleading description of fact, or false or
    misleading representation of fact, which . . . is likely to
    cause confusion, or to cause mistake, or to deceive as
    to the affiliation, connection, or association of such
    person with another person, or as to the origin,
    sponsorship, or approval of his or her goods, services,
    or commercial activities by another person . . . shall be
    liable in a civil action by any person who believes that
    he or she is or is likely to be damaged by such act.
    15 U.S.C. S 1125(a)(1)(A).1
    A.
    Because the Lanham Act does not contain an express
    statute of limitations, we follow the traditional practice of
    borrowing the most analogous statute of limitations from
    state law. See Beauty Time, Inc. v. VU Skin Sys., Inc., 
    118 F.3d 140
    , 143 (3d Cir. 1997) ("The Lanham Act contains no
    express statute of limitations and the general rule is that
    when a federal statute provides no limitations for suits, the
    _________________________________________________________________
    1. The law governing trademark infringement underS 43(a), which
    protects trademarks that are not federally registered, generally follows
    the law governing infringement of registered trademarks, which are
    protected under S 32 of the Lanham Act, 15 U.S.C. S 1114. See A.J.
    Canfield Co. v. Honickman, 
    808 F.2d 291
    , 296, 299 n.9 (3d Cir. 1986).
    7
    court must look to the state statute of limitations for
    analogous types of actions."). See generally Wilson v.
    Garcia, 
    471 U.S. 261
    , 266-67 (1985) ("When Congress has
    not established a time limitation for a federal cause of
    action, the settled practice has been to adopt a local time
    limitation as federal law if it is not inconsistent with federal
    law or policy to do so.").
    This "implied absorption of State statutes of limitation
    within the interstices of . . . federal enactments is a phase
    of fashioning remedial details where Congress has not
    spoken but left matters for judicial determination .. . ."
    Holmberg v. Armbrecht, 
    327 U.S. 392
    , 395 (1946)."By
    adopting the statute governing an analogous cause of
    action under state law, federal law incorporates the State’s
    judgment on the proper balance between the policies of
    repose and the substantive policies of enforcement
    embodied in the state cause of action." 
    Wilson, 471 U.S. at 271
    .
    To be sure, it is inappropriate to "mechanically appl[y] a
    state statute of limitations simply because a limitations
    period is absent from the federal statute." Occidental Life
    Ins. Co. v. EEOC, 
    432 U.S. 355
    , 367 (1977). In rare cases,
    the Supreme Court has held that the absence of an express
    limitations period may indicate a Congressional intent to
    impose no time limitation at all upon a federal cause of
    action. See 
    id. at 366
    (holding that there is no statute of
    limitations applicable to the EEOC’s ability to bring Title VII
    enforcement proceedings in federal district court).
    Moreover, if borrowing an analogous statute of limitations
    from state law would "frustrate or interfere with the
    implementation of national policies," courts must look to
    federal law for an analogous limitations period. DelCostello
    v. Int’l Bhd. of Teamsters, 
    462 U.S. 151
    , 161, 163 (1983)
    (applying the NLRA statute of limitations to suits under
    S 301 of the LMRA for breach of a collective bargaining
    agreement); see also Agency Holding Corp. v. Malley-Duff &
    Assocs., 
    483 U.S. 143
    , 156 (1987) (applying the Clayton Act
    statute of limitations to civil RICO actions). See generally
    Occidental Life Ins. 
    Co., 432 U.S. at 367
    ("State legislatures
    do not devise their limitations periods with national
    interests in mind, and it is the duty of the federal courts to
    8
    assure that the importation of state law will not frustrate or
    interfere with the implementation of national policies.").
    In this case, however, neither party argues that
    borrowing the most analogous statute of limitations from
    state law would frustrate the achievement of federal
    policies, and we can see no reason for departing from the
    traditional practice of turning to state law as the"primary
    guide" in this area. See Agency Holding Corp. , 483 U.S. at
    147 ("Given our longstanding practice of borrowing state
    law, and the congressional awareness of this practice, we
    can generally assume that Congress intends by its silence
    that we borrow state law."). We must therefore determine
    which cause of action under Virgin Islands law is most
    analogous to a trademark infringement action underS 43(a)
    of the Lanham Act, and borrow the corresponding statute of
    limitations.
    B.
    Plaintiffs argue that the most analogous statute of
    limitations under Virgin Islands law is the catch-all six-year
    period for "[a]n action upon a liability created by statute"
    that does not fall within any of the specifically enumerated
    limitations periods. 5 V.I.C. S 31(3)(B). Defendants respond
    that the most analogous statute of limitations is the two-
    year limitations period for fraud claims, which the District
    Court applied in granting defendants’ motion to dismiss.
    See 5 V.I.C. S 31(5)(A) (establishing a two-year statute of
    limitations period for "[a]n action for . . . any injury to the
    person or rights of another not arising on contract and not
    herein especially enumerated"); Lawaetz v. Bank of Nova
    Scotia, 
    653 F. Supp. 1278
    , 1282 (D.V.I. 1987) ("Under
    Virgin Islands law, fraud is governed by a two-year
    limitations period . . . .") (citing 5 V.I.C.S 31(5)(a)).
    Alternatively, defendants submit that we should borrow the
    two-year limitations period applicable to actions under 12A
    V.I.C. S 108 for deceptive trade practices in violation of 12A
    V.I.C. S 101. See 12A V.I.C. S 108(j) ("An action under this
    section must be brought within two years after the
    occurrence of a violation of this chapter . . . .").
    In defendants’ view, this question is controlled by our
    9
    decision in Beauty Time, Inc. v. VU Skin Sys., Inc., 
    118 F.3d 140
    (3d Cir. 1997), which applied Pennsylvania’s two-year
    statute of limitations for fraud to plaintiff ’s claim under
    S 38 of the Lanham Act, 15 U.S.C. S 1120, for fraudulent
    procurement of a trademark registration.2 The Court
    explained that "[o]n this claim, it is undisputed that
    Pennsylvania’s two-year statute of limitations for fraud
    actions would 
    apply." 118 F.3d at 143
    . Because plaintiffs
    allege trademark infringement in violation of S 43(a) of the
    Lanham Act, however, our holding in Beauty Time as to the
    appropriate statute of limitations to apply to claims for
    fraudulent procurement of a trademark registration in
    violation of S 38 of the Lanham Act is not controlling. Cf.
    Marshak v. Treadwell, 
    240 F.3d 184
    , 194-95 (3d Cir. 2001)
    (holding that Beauty Time does not govern the statute of
    limitations applicable to claims under S 14 of the Lanham
    Act, 15 U.S.C. S 1064, for cancellation of a trademark
    registration).
    We believe that the Virgin Islands statute of limitations
    for fraud and the Virgin Islands statute of limitations for
    deceptive trade practices govern actions that are more
    analogous to plaintiffs’ claims than the Virgin Islands
    catch-all statute of limitations for "a liability created by
    statute." The problem that we see with plaintiffs’ argument
    in favor of applying the limitations period for"liabilit[ies]
    created by statute" is that it focuses on the source of law
    to the exclusion of the substance of the cause of action.
    That is, the statute of limitations period that plaintiffs urge
    on us would apply in this case because the source of
    plaintiffs’ cause of action is a statute (the Lanham Act), but
    would not apply if plaintiffs brought a common law cause
    of action whose elements were identical to the elements of
    their Lanham Act cause of action. We conclude that it is
    _________________________________________________________________
    2. Section 38 provides:
    Any person who shall procure registration in the Patent and
    Trademark Office of a mark by a false or fraudulent declaration or
    representation, oral or in writing, or by any false means, shall be
    liable in a civil action by any person injured thereby for any
    damages sustained in consequence thereof.
    5 U.S.C. S 1120.
    10
    more appropriate to borrow a limitations period under state
    law on the basis of the substantive elements of the
    analogous state cause of action, rather than on whether the
    cause of action is created by common law or statute. 3
    The six-year statute of limitations could apply if plaintiffs
    identified a particular cause of action under Virgin Islands
    law governed by that limitations period. Plaintiffs, however,
    have failed to identify with particularity an analogous
    "liability created by statute" under Virgin Islands law that
    would justify applying the six-year residual statute of
    limitations. To be sure, neither a cause of action for fraud
    nor a cause of action for deceptive trade practices supplies
    a perfect analogue to S 43(a). For example, under both
    common law fraud and the Virgin Islands deceptive trade
    practices statute, a seller who misrepresents the source of
    _________________________________________________________________
    3. We do not gainsay that plaintiffs’ Lanham Act claims fall within the
    plain language of the residual six-year statute of limitations under Virgin
    Islands law. Plaintiffs’ claims would therefore be subject to this six-year
    limitations period if state statutes of limitations applied of their own
    force as a matter of state law to federal causes of action that lack an
    express statute of limitations provision, as is the case when federal
    courts apply state law under the Rules of Decision Act, 28 U.S.C. S 1652,
    and Erie R.R. Co. v. Tompkins, 
    304 U.S. 64
    (1938). See Agency Holding
    Corp. v. Malley-Duff & Assocs., 
    483 U.S. 143
    , 158 (1987) (Scalia, J.,
    concurring in the judgment) ("In its original form, during what I term the
    ‘first phase’ of the borrowing doctrine, our practice of applying state law
    in reality involved no borrowing at all; rather, we applied state
    limitations periods to federal causes of action because we believed that
    those state statutes applied of their own force, unless pre-empted by
    federal law."). The Supreme Court has made clear, however, that state
    statutes of limitations do not apply of their own force to federal causes
    of action that lack an express limitations period; rather, the
    characterization of the appropriate statute of limitations is a matter of
    federal, not state law. See Wilson v. Garcia, 
    471 U.S. 261
    , 269-70 (1985)
    ("In borrowing statutes of limitations for . . . federal claims, this Court
    has generally recognized that the problem of characterization is
    ultimately a question of federal law."); Holmberg v. Armbrecht, 
    327 U.S. 392
    (1946) (holding that Erie does not require federal courts to apply
    state tolling doctrines to federal causes of action). Thus, when borrowing
    a statute of limitations from state law, we ask not which limitations
    period plaintiffs’ claims would fall under if state law limitations periods
    governed of their own force, but rather which state law cause of action
    is most analogous to the federal cause of action at issue.
    11
    goods is liable only to consumers, not competitors. See 12A
    V.I.C. S 108 (creating a private remedy for violations of
    S 101 for consumers who are injured by deceptive trade
    practices). In contrast, S 43(a) creates a cause of action for
    competitors, not consumers. See Serbin v. Ziebart Int’l
    Corp., 
    11 F.3d 1163
    , 1164-65 (3d Cir. 1993) (holding that
    consumers who purchase goods or services in reliance on
    the vendor’s false advertising lack standing to sue under
    the false advertising prong of S 43(a)). However, even though
    consumers lack standing to sue under S 43(a), one of the
    Lanham Act’s underlying purposes, like that of the Virgin
    Islands deceptive trade practices statute and common law
    fraud, is to protect consumers from confusion as to the
    source of goods and services. See Inwood Labs., Inc. v. Ives
    Labs. Inc., 
    456 U.S. 844
    , 854 n.14 (1982) (characterizing
    the two goals of the Lanham Act as protecting the
    trademark owner’s "goodwill which he spent energy, time,
    and money to obtain" and ensuring consumers’"ability to
    distinguish among the goods of competing manufacturers").
    Because both common law fraud and the Virgin Islands
    deceptive trade practices statute generally impose liability
    on sellers who misrepresent the source of their goods in a
    manner that misleads consumers and harms competitors,
    causes of action for fraud and violations of the deceptive
    trade practices statute bear substantial similarities, in both
    their elements and underlying purpose, to a cause of action
    for trademark infringement under S 43(a) of the Lanham
    Act. See Kason Indus., Inc. v. Component Hardware Group,
    Inc., 
    120 F.3d 1199
    , 1203 (11th Cir. 1997) ("It should be
    apparent that S 43(a) of the Lanham Act andS 10-1-
    372(a)(2) of the [Georgia Uniform Deceptive Trade Practices
    Act] provide analogous causes of action . . . ."); Conopco,
    Inc. v. Campbell Soup Co., 
    95 F.3d 187
    , 191 (2d Cir. 1996)
    ("As the language of the Act makes clear, there is an
    intimate relationship between fraud and injury under the
    Lanham Act.").
    We therefore conclude that causes of action for fraud and
    deceptive trade practices are more analogous to aS 43(a)
    cause of action for trademark infringement than is"[a]n
    action upon a liability created by statute," 5 V.I.C.
    S 31(3)(B), and accordingly hold that the two-year statute of
    12
    limitations is the more appropriate limitations period to
    apply to plaintiffs’ claims for trademark infringement under
    S 43(a). The weight of authority supports this view. See
    Lyons P’ship, L.P. v. Morris Costumes, Inc., 
    243 F.3d 789
    ,
    796-97 (4th Cir. 2001) (applying the statute of limitations
    for the North Carolina Unfair Trade Practices Act, N.C. Gen.
    Stat. S 75-16.2, to plaintiffs’ trademark infringement claims
    under the Lanham Act); Kason Indus., 
    Inc., 120 F.3d at 1203-04
    (holding that the Georgia Uniform Deceptive Trade
    Practices Act, O.C.G.A. S 10-1-370 et seq. , provides the
    most analogous cause of action under state law to plaintiffs’
    trademark infringement claims under S 43(a) of the Lanham
    Act, for purposes of borrowing a statute of limitations);
    Eppendorf-Netheler-Hinz GmbH v. Enterton Co., 
    89 F. Supp. 2d
    483, 486 (S.D.N.Y. 2000) (borrowing the statute of
    limitations for fraud claims to create a presumption of
    laches applicable to plaintiff ’s trademark infringement
    claims); cf. 
    Conopco, 95 F.3d at 191-92
    (drawing on the
    statute of limitations for fraud to presume that plaintiffs’
    false advertising claims under S 43(a) are barred by laches).
    C.
    Plaintiffs contend that even under a two-year statute of
    limitations period, their claims are viable because their
    discovery of defendants’ allegedly actionable conduct
    occurred within two years before the filing of this suit.
    Whether the limitations period begins running from the
    date that plaintiffs discovered the actionable conduct, as
    would be the case under a "discovery rule," or whether the
    limitations period begins running from the date the
    actionable conduct occurred, depends on the state law
    governing the most analogous cause of action. See Beauty
    Time, Inc. v. VU Skin Sys., Inc., 
    118 F.3d 140
    , 144 (3d Cir.
    1997) ("Because we look to state law for the appropriate
    statute of limitations, we also look to Pennsylvania law on
    the closely related questions of tolling and application.").4
    _________________________________________________________________
    4. In urging us to apply the discovery rule to their claims, plaintiffs rely
    on the Supreme Court decisions in Bailey v. Glover, 
    88 U.S. 342
    (1874),
    and Holmberg v. Armbrecht, 
    327 U.S. 392
    (1946). Bailey held that the
    federal statute of limitations under the Bankruptcy Act was tolled where
    13
    Under Virgin Islands law, the statute of limitations for
    fraud begins running at the time the plaintiff discovered the
    _________________________________________________________________
    the defendant’s fraud concealed from plaintiffs the existence of their
    cause of action. See 
    Bailey, 88 U.S. at 348
    ("[W]here the party injured by
    the fraud remains in ignorance of it without any fault or want of
    diligence or care on his part, the bar of the statute does not begin to run
    until the fraud is discovered, though there be no special circumstances
    or efforts on the part of the party committing the fraud to conceal it from
    the knowledge of the other party."). Similarly, the Court in Holmberg held
    that state law rejecting the discovery rule did not apply to actions in
    equity to enforce a federal right that lacked a statute of limitations. See
    
    Holmberg, 327 U.S. at 397
    ("It would be . . . incongruous to confine a
    federal right within the bare terms of a State statute of limitation
    unrelieved by the settled equitable federal doctrine as to fraud . . . .").
    We are of course bound under our Internal Operating Procedures, see
    Third Circuit IOP 9.1, by Beauty Time. We are not uncomfortable with
    this posture, because while we acknowledge a possible tension between
    Beauty Time and these cases, we believe that they are reconcilable. In
    particular, Bailey addressed only the application of the discovery rule to
    an express federal statute of limitations, which is absent from the
    provisions of the Lanham Act at issue in this case and Beauty Time.
    Although Holmberg held that the discovery rule applied to a cause of
    action under a federal statute that, like the Lanham Act, lacked an
    express statute of limitations, Holmberg is reconcilable with Beauty Time
    on the ground that the statute at issue in Holmberg created only "a
    federal right for which the sole remedy is in equity." 
    Holmberg, 327 U.S. at 395
    (emphasis added). In contrast, the Lanham Act creates federal
    rights for which both legal and equitable remedies are available. See
    Dairy Queen, Inc. v. Wood, 
    369 U.S. 469
    , 477 (1962) ("[A]n action for
    damages based upon a charge of trademark infringement . . . [is] subject
    to cognizance by a court of law."). Accordingly, we comfortably follow the
    holding of Beauty Time that where a court borrows a statute of
    limitations from state law, the court must also borrow from state law the
    relevant tolling principles. See Hardin v. Straub, 
    490 U.S. 536
    , 539
    (1989) ("Limitations periods in S 1983 suits are to be determined by
    reference to the appropriate state statute of limitations and the
    coordinate tolling rules . . . ."); Bd. of Regents v. Tomanio, 
    446 U.S. 478
    ,
    486 (1980) ("In virtually all statutes of limitations the chronological
    length of the limitation period is interrelated with provisions regarding
    tolling, revival, and questions of application. In borrowing a state period
    of limitation for application to a federal cause of action, a federal court
    is relying on the State’s wisdom in setting a limit, and exceptions
    thereto, on the prosecution of a closely analogous claim.") (quoting
    Johnson v. Ry. Express Agency, Inc., 
    421 U.S. 454
    , 464 (1975)).
    14
    fraud, whereas the statute of limitations for deceptive trade
    practices begins running from the date the defendant
    committed the unlawful conduct. Compare 5 V.I.C. S 32(c)
    ("In an action upon a . . . fraud, . . . the limitation shall be
    deemed to commence only from . . . the discovery of the
    fraud . . . ."), with 12A V.I.C. S 108(j) ("An action under this
    section must be brought within two years after the
    occurrence of a violation of this chapter [governing
    deceptive trade practices] . . . ."). To determine whether the
    discovery rule applies to plaintiffs’ Lanham Act claims, it is
    therefore necessary to decide whether claims for trademark
    infringement under S 43(a) of the Lanham Act are more
    analogous to common law fraud claims or claims for
    violations of the VI’s deceptive trade practices statute.
    The courts addressing the question are divided on
    whether common law fraud claims or claims under state
    unfair business practices statutes are more analogous to
    Lanham Act claims for trademark infringement. Compare
    Lyons P’ship, L.P. v. Morris Costumes, Inc., 
    243 F.3d 789
    ,
    796-97 (4th Cir. 2001) (applying the statute of limitations
    for the North Carolina Unfair Trade Practices Act, N.C. Gen.
    Stat. S 75-16.2, to plaintiffs’ trademark infringement claims
    under the Lanham Act), Kason Indus., Inc. v. Component
    Hardware Group, Inc., 
    120 F.3d 1199
    , 1203-04 (11th Cir.
    1997) (holding that the Georgia Uniform Deceptive Trade
    Practices Act, O.C.G.A. S 10-1-370 et seq. , provides the
    most analogous cause of action under state law to plaintiffs’
    trademark infringement claims under S 43(a) of the Lanham
    Act, for purposes of borrowing a statute of limitations), and
    Federal Express Corp. v. United States Postal Serv. , 75 F.
    Supp. 2d 807, 816-17 (W.D. Tenn. 1999) (applying the
    statute of limitations for the Tennessee Consumer
    Protection Act, T.C.A. S 47-18-104, to plaintiffs’ claims
    under S 43(a) of the Lanham Act), with Eppendorf-Netheler-
    Hinz GmbH v. Enterton Co., 
    89 F. Supp. 2d
    483, 486
    (S.D.N.Y. 2000) (borrowing the statute of limitations for
    fraud claims to create a presumption of laches applicable to
    plaintiff ’s trademark infringement claims), Harley-
    Davidson, Inc. v. Estate of O’Connell, 
    13 F. Supp. 2d 271
    ,
    279 (N.D.N.Y. 1998) (same), Derrick Mfg. Corp. v.
    Southwestern Wire Cloth, Inc., 
    934 F. Supp. 796
    , 804-05
    (S.D. Tex. 1996) (applying the fraud statute of limitations to
    15
    plaintiffs’ trademark infringement claims underS 43(a)),
    and Johannsen v. Brown, 
    797 F. Supp. 835
    , 839-40 (D. Or.
    1992) (same).5
    An analysis of whether fraud claims or deceptive trade
    practices claims are more analogous to trademark
    infringement claims under S 43(a) of the Lanham Act must
    begin with a comparison of the elements of these causes of
    action. To establish trademark infringement under
    S 43(a)(1)(A) of the Lanham Act, a plaintiff must show that
    the defendant:
    use[d] in commerce any word, term, name, symbol, or
    device, or any combination thereof, or any false
    designation of origin, false or misleading description of
    fact, or false or misleading representation of fact, which
    . . . is likely to cause confusion, or to cause mistake,
    or to deceive as to the affiliation, connection, or
    association of such person with another person, or as
    to the origin, sponsorship, or approval of his or her
    goods, services, or commercial activities by another
    person . . . .
    15 U.S.C. S 1125(a)(1)(A).
    The Restatement (Second) of Torts defines the elements of
    common law fraudulent misrepresentation as follows:
    One who fraudulently makes a misrepresentation of
    fact . . . for the purpose of inducing another to act or
    to refrain from action in reliance upon it, is subject to
    liability to the other in deceit for pecuniary loss caused
    _________________________________________________________________
    5. Those decisions addressing claims under the false advertising prong of
    S 43(a) have similarly divided on whether common law fraud or state
    deceptive trade practices statutes provide the appropriate limitations
    period. Compare Conopco, Inc. v. Campbell Soup Co., 
    95 F.3d 187
    , 191-
    92 (2d Cir. 1996) (drawing on the statute of limitations for fraud to
    presume that plaintiffs’ false advertising claims under S 43(a) of the
    Lanham Act are barred by laches), with Hot Wax, Inc. v. Warsaw Chem.
    Co., 
    45 F. Supp. 2d 635
    , 647 (N.D. Ill. 1999) (holding that the state law
    cause of action most analogous to plaintiffs’ false advertising claims
    under S 43(a) of the Lanham Act is the Illinois Consumer Fraud and
    Deceptive Business Practices Act, 815 ILCS 505/10a(e)), aff ’d on other
    grounds sub nom. Hot Wax, Inc. v. Turtle Wax, Inc. , 
    191 F.3d 813
    (7th
    Cir. 1999).
    16
    to him by his justifiable reliance upon the
    misrepresentation.
    Restatement (Second) of Torts S 525;6 see also Smith v.
    Commercial Banking Corp., 
    866 F.2d 576
    , 583 (3d Cir.
    1989) ("[T]he elements of common law fraud . . . require
    that a party make a material misrepresentation that
    another reasonably relies upon to his or her detriment.").
    Common law fraud also includes a scienter element:
    A misrepresentation is fraudulent if the maker
    (a) knows or believes that the matter is not as he
    represents it to be,
    (b) does not have the confidence in the accuracy of
    his representation that he states or implies, or
    (c) knows that he does not have the basis for his
    representation that he states or implies.
    Restatement (Second) of Torts S 526.
    Under the Virgin Islands deceptive trade practices law,
    "[n]o person shall engage in any deceptive or
    unconscionable trade practice in the sale . . . of any
    consumer goods or services . . . ." 12A V.I.C.S 101. The
    statute defines a "deceptive trade practice" as "any false . . .
    or misleading oral or written statement, visual description
    or other representation of any kind made in connection
    with the sale . . . of consumer goods or services, .. . which
    has the capacity, tendency or effect of deceiving or
    misleading consumers." 12A V.I.C. S 102(a). The private
    remedy for violations of S 101 provides that"a consumer
    who suffers a loss as a result of a violation of this chapter
    may recover actual damages or $250, whichever is greater."
    12A V.I.C. S 108(b).
    The most salient difference between S 101 of the Virgin
    Islands deceptive trade practices law and trademark
    _________________________________________________________________
    6. The Virgin Islands legislature has provided that   "[t]he rules of the
    common law, as expressed in the restatements of the   law approved by
    the American Law Institute . . . shall be the rules   of decision in the
    courts of the Virgin Islands in cases to which they   apply, in the absence
    of local laws to the contrary." 1 V.I.C. S 4.
    17
    infringement under S 43(a) of the Lanham Act is that
    whereas S 43(a) applies to "uses in commerce" of infringing
    marks "in connection with any goods or services," 15
    U.S.C. S 1125(a) (emphasis added), S 101 prohibits only
    deceptive trade practices "in the sale . . . of any consumer
    goods or services," (emphasis added), which are defined as
    "foods, services, credit and debts which are primarily for
    personal, household or family purposes." 12A V.I.C.
    S 102(c). Cf. Kason Indus., Inc. v. Component Hardware
    Group, Inc., 
    120 F.3d 1199
    , 1204 (11th Cir. 1997) (noting
    that the Georgia Fair Business Practices Act, O.C.G.A. S 10-
    1-390 et seq., "is significantly different from . . . the
    Lanham Act, because of the former statute’s focus on the
    consumer (as opposed to the commercial) marketplace").
    Like the scope of the Lanham Act, the scope of common law
    fraud is not limited to transactions involving consumers,
    but rather extends to any purchase in the commercial
    marketplace, such as transactions between wholesalers and
    retailers.
    Although the scope of transactions covered by the Virgin
    Islands prohibition against deceptive trade practices is
    more limited than the scope of transactions covered by
    common law fraud and the Lanham Act, we believe that the
    differences between the elements of common law fraud and
    trademark infringement under S 43(a) are significant. In
    particular, the scienter requirement for common law fraud
    is absent from S 43(a). That is, unlike a defendant in a
    common law fraud case, a defendant may be liable for
    trademark infringement under S 43(a) even if he or she
    innocently used an infringing mark and lacked any intent
    to confuse consumers as to the source of the goods. See
    Parkway Baking Co. v. Freihofer Baking Co., 
    255 F.2d 641
    ,
    648 (3d Cir. 1958) ("The fact that the [infringing mark]
    appeared on [defendant’s product] because of a mistake is
    not a defense to an action under this section for there is no
    requirement that the falsification occur wilfully and with
    intent to deceive."); see also Johnson & Johnson v. Carter-
    Wallace, Inc., 
    631 F.2d 186
    , 189 (2d Cir. 1980) (noting that
    S 43(a) "does not require proof of intent to deceive").
    Similarly, there is nothing in S 101’s prohibition against
    deceptive trade practices or S 102’s definition of deceptive
    trade practices that requires an intent to deceive.
    18
    Common law fraud further differs from trademark
    infringement under S 43(a) and the deceptive trade
    practices prohibited by Virgin Islands statute in that
    common law fraud requires actual reliance on the
    defendant’s misrepresentation, whereas S 43(a) simply
    requires a designation that is "likely to cause confusion,"
    and a deceptive trade practice simply requires a
    representation that has the "tendency or effect of deceiving
    or misleading." 12A V.I.C. S 102(a); cf. Kason Indus., 
    Inc., 120 F.3d at 1204
    ("[W]hile the standard of the [Georgia
    Uniform Deceptive Trade Practices Act] and the Lanham Act
    is ‘likelihood of confusion,’ the standards for an arguably
    analogous claim under the [Georgia Fair Business Practices
    Act] is ‘actual confusion.’ ").
    Finally, the statutory definition of "deceptive trade
    practices" specifically includes "representations . . . that the
    supplier has a sponsorship, approval, status, [or]
    affiliation," which have the "tendency . . . of misleading
    consumers." 12A V.I.C. S 102(a)(1). This prohibition against
    representations that tend to mislead consumers as to the
    source or affiliation of goods or services strongly resembles
    the prohibition under S 43(a) against any designation that
    "is likely to cause confusion . . . as to the affiliation,
    connection, or association of [defendant] with another
    person, or as to the origin, sponsorship, or approval of
    [defendant’s] goods, services, or commercial activities by
    another person."
    Thus, although the Virgin Islands deceptive trade
    practices statute applies to a narrower range of
    transactions than common law fraud, within the range of
    covered transactions the conduct that renders a seller liable
    under the Virgin Islands deceptive trade practices statute
    bears a strong resemblance to the conduct that renders a
    seller liable for trademark infringement under S 43(a). In
    contrast, the doctrine of common law fraud renders a seller
    liable for misrepresenting the source of goods only if the
    seller possessed the requisite scienter and purchasers
    actually relied to their detriment on the misrepresentation.
    Neither of these elements is required under the deceptive
    trade practices statute or S 43(a).
    19
    We therefore hold that the cause of action under Virgin
    Islands law most analogous to a trademark infringement
    claim under S 43(a) of the Lanham Act, for purposes of
    borrowing a statute of limitations, is a cause of action
    under 12A V.I.C. S 108 for deceptive trade practices in
    violation of 12A V.I.C. S 101. This cause of action is subject
    to a two-year statute of limitations that begins running
    from the date the violation of the statute occurred, not the
    date the violation was discovered, as would be the case
    under the statute of limitations for fraud. 12A V.I.C. S 108(j).7
    This holding makes it unnecessary for us to resolve the
    disputed question whether plaintiffs discovered the conduct
    complained of more than two years before filing this suit.
    Because plaintiffs do not argue that they commenced this
    action within two years of the allegedly actionable conduct,
    plaintiffs’ claims were properly dismissed as time-barred
    unless the statute of limitations was equitably tolled.8
    _________________________________________________________________
    7. Under 12A V.I.C. S 108(j), "[a]n action under this section must be
    brought within two years after the occurrence of a violation of this
    chapter, within one year after the last payment in a consumer
    transaction involved in a violation of this chapter, or within one year
    after the termination of proceedings by the Director with respect to a
    violation of this chapter, whichever is later." The extension of the two-
    year limitations period to "one year after the last payment in a consumer
    transaction involved in a violation of this chapter" or "one year after the
    termination of proceedings by the Director with respect to a violation of
    this chapter" is clearly inapplicable in this case.
    8. Plaintiffs do not argue that defendants’ allegedly unlawful conduct
    continued during the two-year period prior to filing this suit and that
    their claims therefore survive the two-year statute of limitations under
    the continuing wrong doctrine. See Hot Wax, Inc. v. Turtle Wax, Inc., 
    191 F.3d 813
    , 821 (7th Cir. 1999) ("The notion of a‘continuing wrong’ . . .
    is . . . prevalent in Lanham Act cases . . . . Under the notion of a
    continuing wrong, only the last infringing act need be within the
    statutory period."); see also Lyons P’ship, L.P. v. Morris Costumes, Inc.,
    
    243 F.3d 789
    , 797 (4th Cir. 2001) ("[A]lthough the district court was
    correct to hold that [plaintiff] could not recover for claims that accrued
    outside the limitations periods, it erred to the extent that it dismissed
    [plaintiffs’ Lanham Act] claims that were premised upon acts that
    occurred within the applicable periods.") (internal quotation marks and
    citations omitted).
    20
    III.
    Plaintiffs argue that their filing of a similar action in the
    District Court for the District of Puerto Rico within the two-
    year limitations period equitably tolled the statute of
    limitations. Defendants respond that the doctrine of
    equitable tolling is inapplicable because plaintiffs’ Puerto
    Rico suit was dismissed for lack of personal jurisdiction.
    According to defendants, the filing of a lawsuit in a court
    that lacks personal jurisdiction over the defendants does
    not toll the running of the limitations period.
    There appears to be no binding case law on the question
    whether, under Virgin Islands law, a lawsuit filed in a court
    that lacks personal jurisdiction over the defendants may
    equitably toll the statute of limitations. In such a case, we
    are instructed by 1 V.I.C. S 4 that:
    The rules of the common law, as expressed in the
    restatements of the law approved by the American Law
    Institute, and to the extent not so expressed, as
    generally understood and applied in the United States,
    shall be the rules of decision in the courts of the Virgin
    Islands in cases to which they apply, in the absence of
    local laws to the contrary.
    But there is neither a Virgin Islands statute nor a
    Restatement rule deciding the question of equitable tolling
    in this case, and hence we must look to the common law
    "as generally understood and applied in the United States."
    See Abdallah v. Callender, 
    1 F.3d 141
    , 147 (3d Cir. 1993)
    ("[T]he common law as generally understood and applied in
    the United States applies in the Virgin Islands absent a
    statute or Restatement rule to the contrary . . . .").
    Because many states have "savings statutes," under
    which the filing of an action later dismissed for reasons
    unrelated to the merits tolls the statute of limitations, there
    are few decisions addressing this question as a matter of
    common law. See Hosogai v. Kadota, 
    700 P.2d 1327
    , 1334
    (Ariz. 1985) ("[A] clear majority of the states -- thirty-one --
    presently have general savings statutes in civil actions."); 4
    Charles Alan Wright & Arthur R. Miller, Federal Practice
    and Procedure S 1056 at 273 n.44 (3d ed. 2002) (noting that
    over half the states have savings statutes of some kind).
    21
    Among those courts that have addressed the question,
    there appears to be a split of authority. Compare Mayes v.
    Leipziger, 
    729 F.2d 605
    , 608 (9th Cir. 1984) (holding that
    under California common law, the filing of an action that is
    dismissed for lack of personal jurisdiction may equitably
    toll the statute of limitations with respect to a subsequently
    filed identical action), Hosogai v. Kadota, 
    700 P.2d 1327
    (Ariz. 1985) (same holding, under Arizona common law),
    and Mitzner v. W. Ridgelawn Cemetery, Inc., 
    709 A.2d 825
    ,
    826 (N.J. Super. Ct. App. Div. 1998) (same holding, under
    New Jersey common law), with Young v. Clantech, Inc., 
    863 F.2d 300
    , 300 (3d Cir. 1988) (per curiam) (holding that
    under New Jersey common law, a lawsuit filed in a court
    that lacked personal jurisdiction over the defendant cannot
    equitably toll the statute of limitations), and Johnson v. City
    of Raleigh, 
    389 S.E.2d 849
    , 850 (N.C. Ct. App. 1990)
    (holding that under North Carolina common law, "a
    voluntarily dismissed suit which is based on defective
    service does not toll the statute of limitations").
    As there is no majority common law rule governing this
    question, we must therefore select the more appropriate
    rule as a matter of policy. See Polius v. Clark Equip. Co.,
    
    802 F.2d 75
    , 77 (3d Cir. 1986) ("Where the Restatement is
    silent and a split of authority exists, courts should select
    the sounder rule" in resolving questions of Virgin Islands
    law.). In choosing the better rule, we are guided by the
    policy rationale underlying statutes of limitations generally:
    Statutes of limitations are primarily designed to assure
    fairness to defendants. Such statutes promote justice
    by preventing surprises through the revival of claims
    that have been allowed to slumber until evidence has
    been lost, memories have faded, and witnesses have
    disappeared. The theory is that even if one has a just
    claim it is unjust not to put the adversary on notice to
    defend within the period of limitation and that the right
    to be free of stale claims in time comes to prevail over
    the right to prosecute them. Moreover, the courts
    ought to be relieved of the burden of trying stale claims
    when a plaintiff has slept on his rights.
    Burnett v. N.Y. Cent. R.R. Co., 
    380 U.S. 424
    , 428 (1965)
    (internal quotation marks and citations omitted).
    22
    Similarly, in Sperling v. Hoffman-La Roche, Inc. , 
    24 F.3d 463
    (3d Cir. 1994), we identified "three basic purposes a
    statute of limitations serves":
    They are first a practical and pragmatic device to spare
    the courts from litigation of stale claims, and the
    citizen from being put to his defense after memories
    have faded, witnesses have died or disappeared, and
    evidence has been lost. . . . Secondly, limitations
    periods are intended to put defendants on notice of
    adverse claims. Finally, limitations periods prevent
    plaintiffs from sleeping on their rights.
    
    Id. at 471-72
    (internal quotation marks, citations, and
    alterations omitted).
    Defendants rely on our decision in Young v. Clantech,
    Inc., 
    863 F.2d 300
    (3d Cir. 1988) (per curiam), which held
    that under New Jersey law, a lawsuit filed in a court that
    lacks personal jurisdiction over the defendant cannot
    equitably toll the statute of limitations. Young , however, is
    not controlling here, since we must look to Virgin Islands
    law, not New Jersey law, to determine whether filing suit in
    a court that lacks personal jurisdiction may equitably toll
    the statute of limitations. See Beauty Time, Inc. v. VU Skin
    Sys., Inc., 
    118 F.3d 140
    , 144 (3d Cir. 1997) ("Because we
    look to state law for the appropriate statute of limitations,
    we also look to Pennsylvania law on the closely related
    questions of tolling and application.").
    Nor do we find Young persuasive on the question whether
    the sounder rule as a matter of policy permits the filing of
    a first action in a court that lacks personal jurisdiction to
    toll the statute of limitations for purposes of a second
    action. Young gave only cursory treatment to the policy
    questions implicated by its holding, and rested its
    prediction of how the New Jersey Supreme Court would
    decide the question of New Jersey law primarily on the New
    Jersey Supreme Court’s case law in this area. See 
    Young, 863 F.2d at 301
    ("Traditionally, the filing of a case against
    a defendant in a court which did not have jurisdiction over
    the action tolled New Jersey’s statute of limitations only if
    the court in which the case was originally filed had
    authority to transfer the case to the proper court.") (citing
    23
    Kaczmarek v. N.J. Turnpike Auth., 
    390 A.2d 597
    (N.J.
    1978)). Whereas in Young we were writing against a
    backdrop of New Jersey Supreme Court precedent, in this
    case we write on a clean slate, as there is no relevant
    binding authority on this point of Virgin Islands law.
    We also note that the New Jersey Superior Court
    Appellate Division in Mitzner v. West Ridgelawn Cemetery,
    Inc., 
    709 A.2d 825
    (N.J. Super. Ct. App. Div. 1998),
    disapproved Young’s distinction between filing suit in a
    court that lacks subject matter jurisdiction, which tolls the
    statute of limitations under New Jersey law, see Galligan v.
    Westfield Ctr. Serv., Inc., 
    412 A.2d 122
    , 123 (N.J. 1980),
    and filing suit in a court that lacks in personam
    jurisdiction, which Young held does not toll the statute of
    limitations under New Jersey law but Mitzner held does:
    Although the [Young] court suggested that significant
    policy arguments support a distinction between the two
    types of defects, it did not spell them out. We do not
    perceive any. Indeed, if there is a distinction, the filing
    in a court without subject matter jurisdiction would
    seem to be the greater defect.
    
    Mitzner, 709 A.2d at 828
    ; cf. Burnett , 380 U.S. at 429
    (holding that an action filed in an improper venue tolled the
    FELA statute of limitations, and noting that "venue
    objections may be waived by the defendant"). We therefore
    do not believe that Young is either controlling or persuasive
    on the question whether, purely as a matter of policy, the
    sounder rule is to permit equitable tolling where a plaintiff
    files an initial action in a court that lacks in personam
    jurisdiction over the defendants.
    We believe that the rule adopted by the Arizona Supreme
    Court in Hosogai v. Kadota, 
    700 P.2d 1327
    (Ariz. 1985),
    makes more sense than the rule of New Jersey common law
    adopted by Young. Hosogai held that a statute of limitations
    is equitably tolled for a second action by the filing of a
    procedurally defective first action if there is:"1) timely
    notice to the defendant in filing the first claim; 2) lack of
    prejudice to the defendant in gathering evidence to defend
    against the second claim; [and] 3) reasonable and good
    faith conduct by the plaintiff in prosecuting the first action
    24
    and diligence in filing the second action." 
    Hosogai, 700 P.2d at 1333
    ; see also Mayes v. Leipziger, 
    729 F.2d 605
    , 608
    (9th Cir. 1984) ("California equitably tolls its statutes of
    limitation during the pendency of an earlier case provided
    there is timely notice, and lack of prejudice to the
    defendant, and reasonable and good faith conduct on the
    part of the plaintiff.") (internal quotation marks and citation
    omitted).
    In our view, the equitable tolling rule articulated in
    Hosogai avoids the unfairness that would occur if a plaintiff
    who diligently and mistakenly prosecuted his claim in a
    court that lacked personal jurisdiction were barred under
    the statute of limitations from promptly refiling in a proper
    jurisdiction. Cf. Goldlawr, Inc. v. Heiman, 
    369 U.S. 463
    ,
    466 (1962) (recognizing "the injustice" that would result "in
    plaintiff ’s losing a substantial part of its cause of action
    under the statute of limitations merely because it made a
    mistake in thinking that the respondent corporations could
    be found or that they transact business" in the forum
    venue) (internal quotation marks and alterations omitted).
    At the same time that the Hosogai rule avoids unfairness
    to plaintiffs who diligently prosecute their claims, it
    preserves the policies underlying statutes of limitations
    which, as the Supreme Court explained in Burnett , "assure
    fairness to defendants . . . . by preventing surprises
    through the revival of claims that have been allowed to
    slumber until evidence has been lost, memories have faded,
    and witnesses have 
    disappeared." 380 U.S. at 428
    . In
    Burnett, the Court held that an action dismissed for
    improper venue equitably tolled the FELA statute of
    limitations. The Court’s holding rested on the conclusion
    that the policies underlying statutes of limitations would
    not be served by holding plaintiffs’ claims time-barred:
    Petitioner here did not sleep on his rights but brought
    an action within the statutory period in a state court of
    competent jurisdiction. Service of process was made
    upon the respondent notifying him that petitioner was
    asserting his cause of action. . . . Respondent could not
    have relied upon the policy of repose embodied in the
    limitation statute, for it was aware that petitioner was
    actively pursuing his FELA remedy; in fact, respondent
    25
    appeared specially in the Ohio court to file a motion for
    dismissal on grounds of improper venue.
    
    Burnett, 380 U.S. at 429
    -30.
    Similarly, the Hosogai rule protects defendants by
    permitting equitable tolling only if the filing of the first
    action put the defendant on notice within the limitations
    period, there was no prejudice to the defendant in
    defending the second action, and the plaintiff acted
    reasonably and in good faith in prosecuting the first action
    and exercised diligence in prosecuting the second action.
    To be sure, the fact-specific, multi-factored nature of this
    equitable tolling test will consume more judicial resources
    than an easily applied bright-line rule that the filing of an
    action in a court that lacks personal jurisdiction over the
    defendants does not toll the statute of limitations.
    Moreover, application of the Hosogai rule, because it is so
    fact-specific, may undermine predictability to some degree.
    These problems, however, are inherent in all equitable
    doctrines, which demand flexibility in order to avoid the
    arbitrariness of rigid rules. See Holmberg v. Armbrecht, 
    327 U.S. 392
    , 396 (1946) ("Equity eschews mechanical rules; it
    depends on flexibility.").
    Thus, we hold that under Virgin Islands law, the statute
    of limitations for a second action may be equitably tolled by
    the filing of a first action dismissed for lack of personal
    jurisdiction if: (1) the first action gave defendant timely
    notice of plaintiff ’s claim; (2) the lapse of time between the
    first and second actions will not prejudice the defendant;
    and (3) the plaintiffs acted reasonably and in good faith in
    prosecuting the first action, and exercised diligence in filing
    the second action. Application of this test to the record
    before us does not yield a clear-cut answer. On the one
    hand, the suit filed in the District Court for the District of
    Puerto Rico within the two-year limitations period afforded
    defendants timely notice of plaintiffs’ claims. Moreover, at
    oral argument, defendants were unable to identify any
    prejudice caused by plaintiffs’ delay in bringing this suit
    following the dismissal of the first suit. On the other hand,
    plaintiffs’ failure to request the District Court for the
    District of Puerto Rico to transfer the case to the Virgin
    26
    Islands, pursuant to 28 U.S.C. S 1631, if that court found
    that it lacked personal jurisdiction, may have been
    unreasonable.9 Furthermore, in waiting nearly three
    months to refile a substantially similar complaint in the
    Virgin Islands, plaintiffs may not have exercised sufficient
    diligence in prosecuting this action.
    Application of this equitable doctrine is generally
    committed to the discretion of the trial court in the first
    instance. The record is not fully developed with respect to
    these issues, and the record that has been developed does
    not, as explained above, cut clearly in favor of plaintiffs or
    defendants. Accordingly, we will vacate the District Court’s
    order dismissing plaintiffs’ claims as time-barred, and
    remand the case to the District Court further proceedings
    consistent with this opinion.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    _________________________________________________________________
    9. The Puerto Rico District Court had authority, if it found that it lacked
    in personam jurisdiction, to transfer plaintiffs’ first action to the District
    Court of the Virgin Islands. See 28 U.S.C.S 1631 ("Whenever a civil
    action is filed in a court . . . and that court finds that there is a want
    of jurisdiction, the court shall, if it is in the interest of justice, transfer
    such action or appeal to any other such court in which the action or
    appeal could have been brought at the time it was filed or noticed, and
    the action or appeal shall proceed as if it had been filed in or noticed for
    the court to which it was transferred on the date upon which it was
    actually filed in or noticed for the court from which it is transferred.").
    Plaintiffs, however, did not request the Puerto Rico District Court, if it
    found that it lacked personal jurisdiction over the defendants, to transfer
    the case to the District of the Virgin Islands, and the Court apparently
    did not recognize that authority sua sponte.
    27