USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 93-2025
ROBERT WILSON, ET AL.,
Appellant,
v.
UNITED STATES GOVERNMENT,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
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[Hon. Hector M. Laffitte, U.S. District Judge]
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Before
Cyr and Stahl, Circuit Judges,
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and Pieras,* District Judge.
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Osvaldo Perez-Marrero for appellant.
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David V. Hutchinson, Assistant Director, Admiralty Torts Branch,
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Civil Division, with whom Frank W. Hunger, Assistant Attorney General,
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Guillermo Gil, United States Attorney, and Fidel Sevillano, Assistant
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United States Attorney, were on brief for appellee.
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May 4, 1994
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*Of the District of Puerto Rico, sitting by designation
STAHL, Circuit Judge. More than two years after
STAHL, Circuit Judge.
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suffering an injury at sea, plaintiff-appellant Robert
Wilson1 attempted to amend his complaint against a private
party to include the United States as defendant. The amended
complaint sought damages under the Public Vessels Act and the
Suits in Admiralty Act, both of which carry a two-year
statute of limitations. The district court dismissed the
claims as time-barred, declining to apply either equitable
tolling, or Fed. R. Civ. P. 15(c)'s "relation back"
provisions. Finding no error, we affirm.
I.
I.
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FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
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On September 10, 1988, Wilson, an employee of
General Electric Government Services, Inc. (hereinafter
"GEGS"), whose job entailed maintaining a fleet of Seaborne
Powered Target Boats (hereinafter "SEPTARs") for the United
States Navy, was sent to sea by GEGS, along with several
other employees, in a SEPTAR. Wilson and the other crew
members became stranded in Hurricane Gilbert and required
rescue by the Coast Guard.
On September 30, 1988, and again on November 23,
1988, counsel for Wilson wrote to United States Navy
officials requesting transcripts of radio communications
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1. Wilson, one of several plaintiffs below, is the only
plaintiff to pursue appeal.
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recorded during the stranding incident. Counsel also
requested the results of any Navy investigations regarding
the incident. These letters did not allude in any manner to
the possibility that the United States might be a party in
any capacity to any legal proceeding. In fact, at the time
the requests were sent, no complaint against any party had
yet been filed.
On September 8, 1989, almost a year after these
requests to the Navy, Wilson and other crew members filed
suit against GEGS under the Jones Act, 46 U.S.C. 688, for
injuries allegedly suffered in the stranding incident. The
United States received no notice of these suits, nor was the
United States, or any of its departments or agencies, named
as a party. On April 2, 1990, GEGS moved for summary
judgment, arguing that the United States Navy owned the
SEPTAR on which Wilson and the others were injured, and that
therefore the United States was the only proper party in
interest.
In response to GEGS's motion for summary judgment,
Wilson filed a motion on June 8, 1990, requesting that GEGS
be dismissed from the suit and that the United States be
substituted as defendant. On June 19, 1990, the district
court dismissed GEGS from the suit and granted Wilson's
motion to amend his complaint.
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Though the district court had granted leave for
Wilson to amend his complaint, more than two months elapsed
and Wilson had still not filed an amended complaint. On
September 10, 1990, two years to the day after the stranding
incident, the court notified Wilson that he had until
September 24, 1990, i.e., fourteen days from the date of the
order, to file an amended complaint, or the action would be
dismissed for lack of prosecution. It is important to note
that when the court issued this deadline, the United States
had received no notice that it would be named a party to the
suit and the amended complaint had not yet been filed. Thus,
as far as the record indicates, no statute of limitations
issue was before the district court when it set the September
24, 1990, deadline.
The amended complaint was filed on September 25,
1990,2 the day after the deadline imposed by the district
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court. It alleged liability under the Public Vessels Act, 46
U.S.C. 781-90 and the Suits in Admiralty Act, 46 U.S.C.
741-52. Suits under these statutes carry a two-year statute
of limitations. Along with the amended complaint, Wilson
filed a motion requesting the court to "relate back" the
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2. Wilson's brief misleadingly states that the amended
complaint was filed on September 24, 1990. The court docket
and the magistrate's report, however, both list September 25,
1990 as the filing date of the amended complaint.
Furthermore, the amended complaint included in the Wilson's
appendix is date stamped by the clerk's office "1990 SEP 25
AM 9:51."
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filing date of the amended complaint to that of the original
complaint. The United States was not served with the
complaint until November 16, 1990, fifty-two days after the
amended complaint was filed. On January 8, 1991, the United
States moved to dismiss the action as time-barred. The
matter was then referred to a magistrate who found that
Wilson had indeed missed the two-year statute of limitations
and had provided no basis for either relating back the filing
date of the amended complaint, or for equitably tolling the
limitations period. On June 30, 1993, the district court
adopted the magistrate's findings and dismissed the action as
time-barred. Wilson appeals from this ruling.
II.
II.
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DISCUSSION
DISCUSSION
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Both the Suits in Admiralty Act and the Public
Vessels Act apply when a plaintiff brings a "public-vessel-
related suit in admiralty against the United States."
Justice v. United States, 6 F.3d 1474, 1475 (11th Cir. 1993).
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Causes of action under both Acts "may be brought only within
two years after the cause of action arises." 46 U.S.C.
745. A cause of action "arises" under both Acts on the date
of injury. See, e.g., McMahon v. United States, 342 U.S. 25,
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27 (1951) ("[W]e think it clear that the proper construction
of the language used in the Suits in Admiralty Act is that
the period of limitation is to be computed from the date of
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the injury."); Justice, 6 F.3d at 1475 (stating that the
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Public Vessels Act incorporates the statute of limitations of
the Suits in Admiralty Act).3
There is no dispute that the original complaint
against GEGS was timely filed, nor can it be disputed that
the amended complaint which named the United States as a
party was first filed more than two years after the date of
injury. Wilson offers two grounds for arguing that the
amended complaint should nonetheless be viewed as timely.
First, Wilson argues that the two-year statute of limitations
should be equitably tolled. Second, he argues that the
amended complaint should be deemed to "relate back" to the
date of filing of the original complaint under Fed. R. Civ.
P. 15(c). We address these arguments in turn.
A. Equitable Tolling
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Federal courts have allowed equitable tolling only
sparingly. Irwin v. Veterans Admin., 111 S. Ct. 453, 457
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3. The Public Vessels Act incorporates provisions of the
Suits in Admiralty Act, "insofar as the same are not
inconsistent" with the Public Vessels Act. 46 U.S.C. 782.
This includes the two-year statute of limitations. See,
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e.g., Justice, 6 F.3d at 1475; Favorite v. Marine Personnel
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and Provisioning, Inc., 955 F.2d 382, 385, 388-89 (5th Cir.
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1992) (applying Suits in Admiralty Act's two-year limitation
in case involving claims under both the Public Vessels Act
and Suits in Admiralty Act). Wilson's brief alludes vaguely
to the notion that the two-year statute of limitations in the
Public Vessels Act operates in a manner different from the
statute of limitations in the Suits in Admiralty Act. We
have found no support for this argument, either in the
statutes themselves or in the cases interpreting these
statutes.
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(1990). For example, such tolling has been allowed where the
claimant actively pursued a timely yet defective pleading, or
where the complainant was tricked by his adversary's
misconduct into allowing a deadline to pass. See id. at 457-
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58 nn. 4 & 5 (compiling cases). Where, on the other hand,
"`the claimant [fails] to exercise due diligence in
preserving his[/her] legal rights,' courts are reluctant to
apply principles of equitable tolling to extend a federal
limitations period." De Casenave v. United States, 991 F.2d
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11, 13 (1st Cir. 1993) (quoting Irwin, 111 S. Ct. at 458).
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In this case, Wilson's failure at more than one
juncture to exercise due diligence proves fatal to his
request for equitable tolling. First, Wilson asks us to toll
the statute of limitations because he purportedly was unaware
at the time he filed suit that the United States, rather than
GEGS, owned the SEPTAR on which he was injured. He further
states that GEGS's delay in filing a motion for summary
judgment on these grounds caused undue delay in determining
the ownership of the SEPTAR, which in turn warrants equitable
tolling.
The magistrate's report points out, however, that
the ownership of the SEPTAR easily could and should have been
determined through routine discovery. Wilson offers no
evidence to the contrary. Nor does he allege any trickery or
other questionable motive on the part of GEGS. In fact,
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there is no evidence in the record tending to show that GEGS
was dilatory in alerting the district court that the United
States owned the SEPTAR. Similarly, there is no record
evidence showing that Wilson made any attempt to ascertain
who owned the SEPTAR, nor is there any evidence that Wilson
pursued discovery on this, or any other issue in this case.
In sum, nothing in the record controverts the magistrate's
finding that the issue of ownership could have been made
known through routine discovery procedures. Thus, we see no
reason to toll the statute of limitations based on the
actions of GEGS in this case. Cf. Favorite v. Marine
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Personnel and Provisioning, Inc., 955 F.2d 382, 388 (5th Cir.
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1992) (declining to equitably toll two-year statute of
limitations under the Suits in Admiralty Act and the Public
Vessels Act where plaintiff "waited to bring suit only
because he believed he could sue . . . his private employer[]
under the three-year statute of limitations in the Jones
Act").
More important than Wilson's initial failure to
ascertain the identity of the SEPTAR's owner, however, is the
fact that Wilson did learn of the actual ownership of the
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SEPTAR more than five months before the statute of
limitations expired, i.e., when GEGS filed its motion for
summary judgment. Still, Wilson did not amend his complaint.
In fact, Wilson filed the amended complaint only after the
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district court threatened to dismiss the case for lack of
prosecution. Wilson offers no reason or excuse for this
delay. We see no basis for extending the exceptional
doctrine of equitable tolling to a party who, by all
accounts, merely failed to exercise his rights. Cf. Puleio
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v. Vose, 830 F.2d 1197, 1203 (1st Cir. 1987) ("The law
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ministers to the vigilant, not to those who sleep upon
perceptible rights."), cert. denied, 485 U.S. 990 (1988). In
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sum, the record before us reflects that Wilson failed to
exercise due diligence in pursuing his claim, and thus we see
no grounds for applying the doctrine of equitable tolling.
B. "Relation Back" Under Fed. R. Civ. P. 15(c)
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Wilson's claim under Fed. R. Civ. P. 15(c) fares no
better. When a plaintiff amends a complaint to add a
defendant, but the plaintiff does so subsequent to the
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running of the relevant statute of limitations, then Rule
15(c)(3) controls whether the amended complaint may "relate
back" to the filing of the original complaint and thereby
escape a timeliness objection.4
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4. Rule 15(c) states:
An Amendment of a pleading relates back
to the date of the original pleading when
(1) relation back is permitted by the
law that provides the statute of
limitations applicable to the action, or
(2) the claim or defense asserted in
the amended pleading arose out of the
conduct, transaction, or occurrence set
forth or attempted to be set forth in the
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We begin by noting that Wilson failed to meet one
of Rule 15(c)(3)'s mechanical requirements, namely, that,
within 120 days of the filing of the original complaint,5
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original pleading, or
(3) the amendment changes the party or
the naming of the party against whom a
claim is asserted if the foregoing
provision (2) is satisfied and, within
the period provided by Rule 4(m) for
service of the summons and complaint, the
party to be brought in by amendment (A)
has received such notice of the
institution of the action that the party
will not be prejudiced in maintaining a
defense on the merits, and (B) knew or
should have known that, but for a mistake
concerning the identity of the proper
party, the action would have been brought
against the party.
The delivery or mailing of process to the
United States Attorney, or United States
Attorney's designee, or the Attorney
General of the United States, or an
agency or officer who would have been a
proper defendant if named, satisfies the
requirement of subparagraphs (A) and (B)
of this paragraph (3) with respect to the
United States or any agency or officer
thereof to be brought into the action as
a defendant.
5. Fed. R. Civ. P. 4(m), cited in Rule 15(c), states:
If service of the summons and complaint
is not made upon a defendant within 120
days after the filing of the complaint,
the court, upon motion or on its own
initiative after notice to the plaintiff,
shall dismiss the action without
prejudice as to that defendant or direct
that service be effected within a
specified time; provided that if the
plaintiff shows good cause for the
failure, the court shall extend the time
for service for an appropriate period.
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"the party to be brought in by amendment . . . received such
notice of the institution of the action that the party will
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not be prejudiced in maintaining a defense on the merits."
(Emphasis supplied). The record shows that the United States
received notice of this action no earlier than November 16,
1990, the date that it was served with the amended complaint.
In arguing that the United States nonetheless had
adequate notice of the claim against GEGS, Wilson points only
to his counsel's requests for radio transcripts and
investigation results from the Navy. These requests occurred
some nine months prior to the institution of the action
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against GEGS. Moreover, the correspondence does not advert,
formally or informally, to the institution of any action
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against the United States or any other party. Accordingly,
we find no means in the record to conclude that the United
States ever received timely notice of the institution of the
suit against GEGS. Without this timely notice, Rule
15(c)(3)'s relation back provisions cannot apply.6
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This subdivision does not apply to
service in a foreign country pursuant to
subdivision (f) or (j)(1).
6. In addition, Wilson cites the "identity-of-interest"
gloss on Rule 15(c) which we endorsed in Hernandez Jimenez v.
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Calero Toledo, 604 F.2d 99, 102-03 (1st Cir. 1979). We
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stated there that "the institution of the action serves as
constructive notice of the action to the parties added after
the limitations period expired, when the original and added
parties are so closely related in business or other
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activities that it is fair to presume the added parties
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learned of the institution of the action shortly after it was
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An additional requirement for relation back under
Rule 15(c)(3) is that the party to be added by amendment
"knew or should have known that, but for a mistake concerning
the identity of the proper party, the action would have been
brought against the party." There is no basis for imputing
such knowledge to the United States on the record before us.
Finally, the Seventh Circuit has recently
reiterated that
"amendment [of a complaint] with relation
back is generally permitted in order to
correct a misnomer of a defendant where
the proper defendant is already before
the court and the effect is merely to
correct the name under which he is sued.
But a new defendant cannot normally be
substituted or added by amendment after
the statute of limitations has run."
Worthington v. Wilson, 8 F.3d 1253, 1256 (7th Cir. 1993)
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(quoting Wood v. Woracheck, 618 F.2d 1225, 1229 (7th Cir.
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1980)). Put another way, Rule 15(c)(3) "`permits an
amendment to relate back only where there has been an error
made concerning the identity of the proper party and where
that party is chargeable with knowledge of the mistake, but
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commenced." Id. To support his argument that the United
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States had such constructive notice in this case, Wilson
cites only the contract between the Navy and GEGS which
governed the operation of the SEPTARs. Without more, this
contract does not permit a conclusion that the United States
and GEGS were so closely related in business that the United
States can be presumed to have received notice of the case
against GEGS, nor does any other record evidence support such
a conclusion.
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it does not permit relation back where, as here, there is a
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lack of knowledge of the proper party.'" Id. (quoting Wood,
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618 F.2d at 1230) (emphasis supplied).
In this case, there was no "mistake concerning the
identity of the proper party," as required by Rule 15(c)(3).
Rather, Wilson merely lacked knowledge of the proper party.
In other words, Wilson fully intended to sue GEGS, he did so,
and GEGS turned out to be the wrong party. We have no doubt
that Rule 15(c) is not designed to remedy such mistakes.
To the extent that Wilson raises any other issues,
he does so in a perfunctory manner, with no attempt at
developed argumentation. Such issues may be deemed waived.
See Romero Lama v. Borras, 16 F.3d 473, 481 n.12 (1st Cir.
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1994).
III.
III.
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CONCLUSION
CONCLUSION
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For the foregoing reasons, the order of the
district court dismissing Wilson's claims against the United
States is
Affirmed. Costs to appellees.
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