Tolling Agreement
(Federal)

Summary

This template is a tolling agreement that can be used between two parties that are involved in a dispute to extend the applicable statute of limitations period for filing a federal claim. It includes practical guidance, drafting notes, and optional clauses. Before entering into any tolling agreement, identify each statutory time bar at issue, and determine whether it is subject to contractual waiver. A time limitation in a federal statute is generally subject to contractual waiver (as well as equitable doctrines) if it is neither jurisdictional nor subject to a prohibition on waiver. See Sec'y, U.S. DOL v. Preston, 873 F.3d 877, 881–86 (11th Cir. 2017) (finding defendant contractually waived defense against ERISA action where ERISA time bar provision was not jurisdictional, and contained no bar on express waiver); NCUA Bd. v. Barclays Cap. Inc., 785 F.3d 387, 393 (10th Cir. 2015) (provision stating that limitations period applied "notwithstanding any provision of any contract" expressly prohibited waiver of statute of limitations relating to certain securities claims). For more information on determining which statutes of limitations are jurisdictional, see Wagstaffe Prac Guide: Fed Civil Proc Before Trial §5-IV, et seq. The agreement cannot be used to revive claims barred by an applicable limitations period prior to entering the agreement. Thus, it is important to ensure that any tolling agreement is finalized and becomes effective prior to the expiration of the statute of limitations. For a full listing of key content covering fundamental civil litigation tasks throughout a federal court litigation lifecycle, see Civil Litigation Fundamentals Resource Kit (Federal). For other pre-litigation templates, see Budget for Litigation (Federal), Document Preservation Demand Letter (Federal), and Attorney Engagement Letter and Fee Agreement (Federal).