United States District Court Clarifies Statute of Limitations for Civil Theft Claims

United States District Court Clarifies Statute of Limitations for Civil Theft Claims

Brett A. Whitley, Associate

            This week, Chief Judge Brimmer of the United States District Court for the District of Colorado (“USDC”) analyzed in Commissiong v. The Center at Lincoln, LLC (the “TCL Suit”) the question of which statutory provision governs the statute of limitations for civil theft claims under Colorado law.[1]  The Court ultimately held that Colo. Rev. Stat. § 13-80-101(1)(h) controls, thereby imposing a three-year statute of limitations for civil theft claims, which at least helps to resolve a long-unsettled question as to whether civil theft claims are governed by a three-year limitations period under Section 13-80-101 or a two-year limitations period for tort actions, generally. 

Brief Background of the TCL Suit

            Plaintiff Celine Commissiong filed the TCL Suit,[2] alleging her employer, The Center at Lincoln, LLC (“TCL”), failed to pay overtime in violation of the Fair Labor Standards Act of 1938.  On June 21, 2024, Ms. Commissiong amended her complaint to add a claim of “Civil Theft of Wages Under the Colorado Minimum Wage Act.”

            TCL then moved to dismiss Ms. Commissiong’s civil theft claim due to it not being brought within the two-year statute of limitations for tort actions set forth in Colo. Rev. Stat. § 13-80-102.  Ms. Commissiong responded that her civil theft claim was not governed by a two-year statute of limitations but was instead governed by a three-year limitations period under Colo. Rev. Stat. § 13-80-101(1)(h).

            The question before the court was whether civil theft constitutes a tort action governed by Colo. Rev. Stat. § 13-80-102’s two-year limitations period, or rather constitutes an action based upon a taking or converting of goods or chattels governed by Colo. Rev. Stat. § 13-80-101(1)(h)’s three-year limitations period.  The Court recognized that there is no current consensus among Colorado courts—or federal courts applying Colorado law—as to the statute of limitations applicable to civil theft claims given that an action for civil theft could plausibly be governed by both Section 13-80-102 and Section 13-80-101(1)(h), and courts have otherwise been inconsistent with their application of either a two- or three-year limitations period for the claim.

The TCL Court Applies Section 13-80-101(h)’s Three-Year Statute of Limitations Period

            In holding that Colo. Rev. Stat. § 13-80-101(1)(h) applied to Commissiong’s civil theft claim, the Court looked to the plain language of both the limitations statutes and the elements of civil theft claims.  The court noted that Section 13-80-101(1)(h) applies to “all actions . . . for taking, detaining, or converting goods or chattels” and, by the same token, civil theft claims may arise when a person takes the property of another without authorization, or the property is taken by deception, even with the owner’s authorization.[3]  Based on the language of Section 13-80-101(1)(h), authorities interpreting the elements of civil theft, and prior persuasive case law, the court determined that Section 13-80-101(1)(h)’s three-year limitations period applied to civil theft claims.

            Conversely, the court found that Section 13-80-102(1)(a)’s two-year limitations period for tort actions, generally, was not applicable and that TCL’s authorities to the contrary were not persuasive.  The court noted that the examples of torts covered by the two-year limitations period—such as negligence, trespass, malicious abuse of process, outrageous conduct, etc.—were not similar to civil theft, and certainly not as analogous as the conversion of goods or chattels.  Moreover, whether civil theft constitutes a “tort” is not as clear-cut as TCL argued, given that while tort remedies are intended to put a plaintiff in a position as nearly as possible equivalent to his position prior to the tort, civil theft claims permit the recovery of treble damages plus attorneys’ fees as a punitive measure, which is otherwise inconsistent with traditional tort law.  Last, while TCL cited several prior cases in which Colorado courts applied a two-year limitations period to civil theft claims, the majority of those cases involved situations where the parties themselves agreed that a two-year limitations period ought to apply, and therefore the courts were not required to resolve any controversy over the issue.

Employer Considerations

            Given that a viable statute of limitations defense can essentially foreclose a plaintiff’s potential civil theft action, whether a two- or three-year limitations period applies to the same is a critical legal question.  The court’s analysis in Commissiong is certainly a persuasive argument in favor of applying a three-year period to these claims, and a potential blow to employers faced with stale civil theft claims based on the alleged theft of wages.  However, employers should be mindful that the punitive, treble damages provisions for civil theft claims as set forth in Colorado’s Rights in Stolen Property statute may themselves be subject to a one-year limitations period under Colo. Rev. Stat. § 13-80-103(1)(d), which governs all actions “for any penalty or forfeiture of any penal statutes.”  In other words, depending on when a civil theft claim is filed (such as over one year after the claim accrues, but otherwise within three years), an employer may have an argument that although the employee timely filed a civil theft claim under Section 13-80-101(1)(h), the employee may not recover a treble damages penalty under the claim due to it being untimely.  The Commissiong court notably did not address or resolve this issue, although other decisions have applied this shortened period of time in order to recover penalties for civil theft.[4]  

[1]See Colo. Rev. Stat. § 18-4-405 (Colorado’s Rights in Stolen Property statute, which gives rise to civil theft claims).

[2] Celine Commissiong v. The Center at Lincoln, LLC, 2025 WL 902898 (D. Colo. Mar. 25, 2025).

[3]A defendant is liable for civil theft when the defendant 1) knowingly obtains, retains, or exercises control over anything of value of another without authorization or by threat or deception; and 2) acted intentionally or knowingly in ways that deprived the plaintiff of the thing of value permanently. 

[4] See, e.g. HLS Trucking Inc. v. Hooper Corp., 2023 WL 5507790, at *2 (D. Colo. Aug. 25, 2023) (no dispute that Rights in Stolen Property statute’s penalty provisions are subject to a one-year limitations period); Colo. Rev. Stat. § 13-80-103(1)(d) (one-year limitations period for any actions for any penalty or forfeiture of any penal statutes).