Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Berry

HOOD, District Judge,

concurring in the majority’s conclusion.

I concur in the outcome of the majority opinion. However, it is my opinion that equitable tolling is applicable to the three month limitation period under 9 U.S.C. § 12. The Supreme Court has long held that the doctrine of equitable tolling “is read into every federal statute of limitations.” Holmberg v. Armbrecht, 327 U.S. 280, 397, 66 S.Ct. 532, 585, 90 L.Ed. 743 (1946); Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 1197, 18 L.Ed.2d 244 (1967); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394, 102 S.Ct. 1127, 1133, 71 L.Ed.2d 234 (1982); Hallstrom v. Tillamook County, 493 U.S. 20, 27, 110 S.Ct. 304, 309, 107 L.Ed.2d 237 (1989); and Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.Ct. 453, 457, 112 L.Ed.2d 435 (1990). This court has recognized that the three months limitation period in 9 U.S.C. § 12 is a “statute of limitations.” See Occidental Chemical Corp. v. Int’l *248Chemical Workers Union, 853 F.2d 1310, 1313 (6th Cir.1988) and Smart v. Ellis Trucking Co., Inc., 580 F.2d 215, 219 (6th Cir.1978). In applying the factors set forth in Andrews v. Orr, 851 F.2d 146, 151 (6th Cir.1988), I agree with the majority opinion that Defendants have failed to make out a case for equitable tolling.