                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 19-3404
                                      ___________

                        KHONGSANA SOUMPHONPHAKDY,
                                              Appellant

                                            v.

                            MARY J. WALILKO; GEICO
                      ____________________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                                (D.C. No. 2:19-cv-16830)
                     District Judge: Honorable Susan D. Wigenton
                     ____________________________________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  on May 26, 2020

                 Before: JORDAN, BIBAS, and PHIPPS, Circuit Judges

                             (Opinion filed: June 11, 2020)
                                      ___________

                                       OPINION*
                                      ___________

PER CURIAM

    Pro se appellant Khongsana Soumphonphakdy appeals the District Court’s order



*
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
dismissing his complaint. For the reasons discussed below, we will vacate the District

Court’s judgment and remand for further proceedings.

    Soumphonphakdy filed a complaint in the U.S. District Court for the District of New

Jersey, alleging that the defendant had injured him in a car accident. He also filed a request

to proceed in forma pauperis (IFP). The District Court entered an order granting the IFP

application and sua sponte dismissing the complaint. In its order, the court concluded that

the complaint was barred by New Jersey’s two-year statute of limitations for personal-

injury actions because the accident had occurred on February 14, 2017, and Soumphon-

phakdy had not filed until August 15, 2019. Soumphonphakdy filed a motion seeking per-

mission to file an amended complaint, which the District Court denied, and a notice of

appeal.

    The District Court had diversity jurisdiction under 28 U.S.C. § 1332, and we have ju-

risdiction under 28 U.S.C. § 1291.1 We review the District Court’s order de novo. See

Newark Cab Ass’n v. City of Newark, 901 F.3d 146, 151 (3d Cir. 2018).

    The District Court sua sponte dismissed the complaint based entirely upon its conclu-

sion that the action was barred by New Jersey’s pertinent statute of limitations. See N.J.

Stat. Ann. § 2A:14-2; Giannakopoulos v. Mid State Mall, 106 A.3d 507, 516 (N.J. Super.

Ct. App. Div. 2014). Ordinarily, a statute of limitations is an affirmative defense that must

be pleaded and that is subject to waiver. See Chainey v. Street, 523 F.3d 200, 209 (3d Cir.



1
  Soumphonphakdy’s appeal is timely because his motion to file an amended complaint
tolled the time to appeal. See Fed. R. App. P. 4(a)(4)(A)(iv)–(vi); Ahmed v. Dragovich,
297 F.3d 201, 208–09 (3d Cir. 2002).
                                              2
2008). While in some circumstances it may be appropriate for a district court to dismiss a

complaint sua sponte based on the statute of limitations, it should not do so “unless it is

clear from the face of the complaint that there are no meritorious tolling issues, or the court

has provided the plaintiff notice and an opportunity to be heard on the issue.” Vasquez

Arroyo v. Starks, 589 F.3d 1091, 1097 (10th Cir. 2009).

    Here, the District Court did not provide notice to Soumphonphakdy, and it is not clear

that tolling in unavailable. On appeal, Soumphonphakdy has argued that his federal action

is timely because he filed a complaint in New Jersey state court asserting the same claim

before the limitations period expired. Soumphonphakdy may be entitled to tolling of the

statute of limitations based on that previous action, as there is a “long line of New Jersey

cases [which] have held that the filing of an action in one forum will toll the statute of

limitations during the pendency of that proceeding.” Jaworowski v. Ciasulli, 490 F.3d 331,

335 (3d Cir. 2007) (alteration in original) (quoting Staub v. Eastman Kodak Co., 726 A.2d

955, 965 (N.J. Super. Ct. App. Div. 1999)); see also Galligan v. Westfield Ctr. Serv., Inc.,

412 A.2d 122, 125 (N.J. 1980) (concluding that tolling during the pendency of a prior ac-

tion was appropriate because the delay would not prejudice defendants, the earlier filing

gave defendants notice that the plaintiff was seeking redress, and the prior filing established

plaintiff’s diligence).2 The District Court did not address this issue in its opinion.


2
  In evaluating the timeliness of Soumphonphakdy’s action, we apply New Jersey law. See
Jaworowski, 490 F.3d at 333. New Jersey courts typically apply the tolling rule described
above when the first action was dismissed for a jurisdictional reason. See Galligan, 412
A.2d at 125 (first action dismissed for lack of federal jurisdiction); Mitzner v.
W. Ridgelawn Cemetery, Inc., 709 A.2d 825, 826 (N.J. Super. Ct. App. Div. 1998) (first
action dismissed for lack of personal jurisdiction). The Appellate Division of the Superior
                                               3
   “Because this calculus is necessarily fact-sensitive, whether it is appropriate to equita-

bly toll the statute of limitations in this action should be determined by the District Court

in the first instance.” Jaworowski, 490 F.3d at 336. Accordingly, we will vacate the District

Court’s judgment and remand for further proceedings.3




Court has held that the tolling rule will not apply if the dismissal in the first action was
“based on a determination related to the merits of the claim.” Schmidt v. Celgene Corp.,
42 A.3d 892, 899 (N.J. Super. Ct. App. Div. 2012). The record as it presently exists does
not show how Soumphonphakdy’s state action was resolved, and we will leave it to the
District Court to determine in the first instance whether it was resolved in a way that im-
plicates the tolling rule.
3
  We express no opinion about whether Soumphonphakdy is entitled to tolling, whether
other defenses apply, or the merits of Soumphonphakdy’s claims.
                                             4
