Commercial Litigation and Arbitration

Delay in Asserting Claim as Evidence of Lack of Merit of Claim

Lengthy delay in asserting a claim, without explanation, may be taken by the finder of fact as evidence that the claim lacks merit. Lumbra v. U.S. , 290 U.S. 551, 560-561 (1934) (“And in the absence of clear and satisfactory evidence explaining, excusing or justifying it, petitioner’s long delay before bringing suit is to be taken as strong evidence” his claim lacked merit); Berry v. U.S., 312 U.S. 450, 456 (1941) (waiting 13 years before bringing suit does not stand as insuperable bar to recovery, but is a circumstance to be weighed by the jury); Gilmore v. U.S., 93 F.2d 774, 776 (5th Cir. 1938) (“An unexplained delay in bringing suit may warrant a jury in presuming a lack of merit in a plaintiff’s cause of action. Such is not a presumption of law, but of fact derived from the circumstances of the particular case.”).

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