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Scenario:

  • Jane files restraining order against John due to alleged violent acts committed by John towards Jane
  • John hires a lawyer: provides info that debunks all claims made against him
  • John's lawyer presents evidence to Jane's lawyer
  • Jane decides to drop the case in the realization that the malicious/false claim made were likely to result in her losing the case in court & to avoid having to pay for John's legal fees (which was requested in the response to initial suit)
  • John is advised by his lawyer to sue for malicious prosecution. John does not pursue retaliation

4 years have come and gone with no contact between John and Jane since the initial restraining order was issued

Question:

Is there a statute of limitations preventing Jane from bringing this case again, and if so can Jane request a restraining order for that actions John had taken against her four years prior?

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The title asks about double jeopardy, but the the body seems to be asking about statute of limitations, which is a separate issue.

If an argument regarding timeliness is made by John, it likely will not be based on a statute of limitations. If Jane is asking for a restraining order, she will have to show a high likelihood of harm. If further actions have occurred recently, then any statute of limitations would not apply. If four years have gone by without any further actions by John, then Jane is unlikely to convince a judge that harm is imminent.

Restraining orders are not supposed to be punitive, but preventative, thus the concept of statutes of limitations generally does not apply; as they are supposed to be used to prevent imminent harm, only the current situation is considered. Long-past actions are relevant only as to interpretation of current facts. One does not get a restraining order "for" violent acts done against one; one gets a restraining order to prevent future acts, and uses previous violent acts as evidence of the likelihood of those acts. Asking a court to protect oneself from someone who has not been in one's life for four years is unlikely to go over well.

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Is there a statute of limitations preventing Jane from bringing this case again, and if so can Jane request a restraining order for that actions John had taken against her four years prior?

Based upon the title, I'm going to interpret this question more broadly and analyze if there is any legal doctrine that prevents Jane from bringing this case again.

Relevant Legal Doctrines

  • Double jeopardy applies to criminal cases where a trial has been commenced. A restraining order proceeding is not a criminal case, so this does not apply.

  • Res judicata and collateral estoppel are doctrines that prevent previously litigate issues from being retried, but they don't apply here because the case was not tried on the merits, it was apparently merely withdrawn voluntarily without being resolved (i.e. "dropped"). If the case were voluntarily "dismissed with prejudice" a new case based upon those events could not be tried again (but this doesn't seem to fit the facts).

  • Accord and satisfaction, and mutual release, are doctrines that apply when a formal settlement agreement is entered into that bars further litigation, but that doesn't appear to have happened in this case.

  • Statute of limitations bars many kinds of lawsuits, usually for money damages, from being filed within a certain amount of time after the incident occurred and the victim of the civil wrong learned of the wrong doing. The filing of the restraining order case establishes a date at which Jane definitely knew of the alleged wrongdoing. But, the statute of limitations varies greatly from jurisdiction to jurisdiction. In Colorado, the relevant statutes of limitations would be one and two years. But, this is not a uniform national rule since it is set by state law.

The typical statute of limitations for lawsuits alleging personal injuries in the U.S. ranges from two years to six year. It is longer than four years in Missouri (five years) and North Dakota (six years). Not infrequently, the statute of limitations for personal injuries caused by intentional acts is shorter than the statute of limitations for injuries caused by negligence.

There are also statutes of limitations for criminal cases, that run without regard to the knowledge of the alleged victim or the authorities in all cases that are relevant here. But, those vary wildly from state to state with some states having no strict statute of limitations for many criminal offenses. Generally speaking (subject to a handful of narrow exceptions) criminal cases must be brought by government prosecutors and can't be initiated by individuals alone.

Stale Incidents and Restraining Orders

Restraining orders are not barred by a statute of limitations because a restraining order assumes that there is a continuing and ongoing threat. Instead, the question is whether there is currently a threat from the person against whom the restraining order is sought to the person seeking the restraining order that is imminent.

Statements about four year old incidents, even if true, will rarely suffice on their own, to show that there is an imminent threat that makes the issuance of a restraining order necessary. But, evidence about incidents long ago (even decades old) can be relevant if this evidence, when considered together with evidence of more recent incidents, makes it appear that there is an imminent threat.

For example, suppose that someone actively threatened her ex-boyfriend with firearms, then was arrested and convicted of murdering someone else and spent fifteen years in prison, and then was released and starting making threatening phone calls to the same person. Even if an original restraining order cases was dropped by the ex-boyfriend after the arrest for murder because the problem was solved for the time being, the evidence of the pre-arrest conduct could be considered by a court to determine how seriously to evaluate the recent threatening phone calls.

Bottom line: It is unlikely that a new restraining order would be sought or granted based upon alleged four year old incidents, but the smart move would be to retain evidence showing that the four year old allegations were bogus in case these allegations are used as background facts in an alleged more recent incident.

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  • The part about estoppel would apply, in a restraining order case, because the complainant agreed there was not reason to move forward. If the complainant was nolle prosequi, then you would be correct that the allegations were not litigated. – Putvi Apr 4 '19 at 16:44
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    @Putvi "nolle prosequi" is just the Latin term for dropping a case, which is precisely what happened here. The fact that the complainant agreed to drop the case in settlement discussions out of court before trial, has no legal effect, and isn't even admissible in evidence pursuant to Federal Rule of Civil Procedure 408 and the state law equivalents. – ohwilleke Apr 4 '19 at 22:07
  • No, the term means you didn't persue the case, not just that it was dropped. – Putvi Apr 4 '19 at 22:09
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    @Putvi This is a distinction without a difference. Dropping a case means voluntarily dismissing it or not showing up for the trial to confirm the temporary order and thus defaulting on the claim to have it made permanent. Do you have any authoritative basis for your assertions at all? – ohwilleke Apr 4 '19 at 22:18
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She can ask for a restraining order, but in general she may not be taken seriously if she let it go for four years. It is going to be up to whether a judge decides if the information in the restraining order is still relevant.

Estoppel sometimes prevents things from being re litigated if she is trying to use the same set of facts to get another order. https://en.wikipedia.org/wiki/Estoppel

The main thing to look at is why a restraining order is needed if the two parties did not have contact for four years. Why would a judge even take the case seriously at that point? The court would, likely, tell you guys to go on not talking to each other. It's not that you can't get a restraining order based on older allegations, but just that there isn't a point to it if you and the other party have no contact. It doesn't protect you from the other person if neither of you contact the other, so it is pointless.

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    Estoppel would not apply when litigation was dropped voluntarily before anything was resolved on the merits. – ohwilleke Apr 4 '19 at 0:10
  • @ohwilleke, that is a mistake. – Putvi Apr 4 '19 at 16:39
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    See, e.g., this: It applies if “(1) the issue is identical to an issue actually litigated and necessarily adjudicated in the prior proceeding; . . . (3) there was a final judgment on the merits in the prior proceeding[.]” Villas at Highland Park Homeowners Assn. v. Villas at Highland Park, 394 P.3d 1144, 1152 (Colo. 2017). It “does not apply to matters which could have been litigated but were not.” Pomeroy v. Waitkus, 517 P.2d 396, 399 (Colo. 1973). – ohwilleke Apr 4 '19 at 21:58
  • The "does not apply to matters..." part does not mean what you are saying it does. It means that it doesn't apply to matters not litigated because they were not brought up. – Putvi Apr 4 '19 at 22:00
  • When nothing is litigated on the merits because it is voluntarily dismissed before trial and there is no resolution of the case on motion practice, the issue isn't brought up. See also, e.g., Cromwell v. County of Sac, 94 U.S. 351, 353 (1876). This means, according to both the first Restatement and the Restatement Second, that issue preclusion [i.e collateral estoppel] does not apply to default or consent judgments. RESTATEMENT OF JUDGMENTS § 68, Comments d, i (1942); RESTATEMENT (SECOND) OF JUDGMENTS § 68, Comment e (Tent. Draft No. 4, 1977) [§ 27]. – ohwilleke Apr 4 '19 at 22:03

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