USCA1 Opinion
June 9, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2311
DENIS MARTIN LINEHAN,
Plaintiff, Appellant,
v.
HARVARD UNIVERSITY,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Torruella, Cyr and Stahl,
Circuit Judges.
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Denis M. Linehan on brief pro se.
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Allan A. Ryan, Jr., on brief for appellee.
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Per Curiam. Plaintiff appeals the district court's
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dismissal of his diversity suit as time-barred under
Massachusetts three-year statute of limitations for personal
injury actions. The complaint alleges that between March and
May, 1987, while plaintiff was enrolled in a graduate studies
program at Harvard Law School, defendant subjected him to
sonic abuse from a remote controlled device installed in
close proximity to his dormitory room. Plaintiff claims that
defendant's wrongful actions were motivated by a vendetta
that had its origin in an employment dispute between the
plaintiff and University College Cork in Ireland.
The complaint was filed on December 10, 1992, more
than five years after the dates of alleged injury. Plaintiff
argues, however, that the three-year statute of limitations
is tolled by (1) fraudulent concealment, or (2) his absence
from the jurisdiction, or (3) the disability caused by
defendant's alleged tort. He also argues (4) that his claims
survive under the state's six-year statute of limitations for
breach of contract claims,1 and (5) that defendant is
estopped from asserting the limitations bar by certain
judgments of the Irish courts. We reject these contentions
for the following reasons. (1) A defendant's alleged
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1. Plaintiff reportedly completed his course of study at
Harvard, obtaining an LL.M. degree in June, 1987.
Nevertheless, he alleges interruptions in contracts for
"studentship," accommodation, medical and linen services.
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fraud may toll the limitations period only if it "conceals
the cause of . . . action from the knowledge of the person
entitled to bring it . . . . " Mass. Gen. L. ch. 260, 12.
Plaintiff's complaint asserts, however, that he was aware of
the alleged sonic abuse and his physical injury at the time
it occurred. His theory that Harvard is responsible for the
alleged tort is built almost entirely on actions and
statements by Harvard personnel of which he was aware in 1986
and 1987. In addition, as early as May, 1987, plaintiff
sought legal assistance to litigate or mediate this claim
against Harvard. "[A] cause of action is not concealed from
one who has knowledge of the facts that create it . . . ."
Riley v. Presnell, 409 Mass. 239, 251, 565 N.E.2d 780, 787
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(1991) (citation omitted); see also Bowen v. Eli Lilly & Co.,
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408 Mass. 204, 205, 557 N.E.2d 739, 740 (1990) (holding that
a cause of action accrues when the plaintiff has notice of
the basic fact that he has been harmed by the defendant's
conduct, regardless of an ignorance of the particulars).
(2) A plaintiff's voluntary departure from the
state after the accrual of his cause of action does not toll
the statute of limitations. Cf. Mass. Gen. L. ch. 260, 9
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(a defendant's absence may toll the limitations period);
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Walsh v. Ogorzalek, 372 Mass. 271, 361 N.E.2d 1247 (1977)
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(tolling for non-resident defendants is limited to those
defendants not amenable to service during their absence).
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The plaintiff's residence in a foreign country during the
relevant period does
not qualify as a disabling factor unless the foreign country
was then at war with the United States. Mass. Gen. L. ch.
260, 8.
(3) We know of no case, and plaintiff has cited
none, which holds that a plaintiff's alleged physical injury
alone tolls the Massachusetts statute of limitations. The
state recognizes mental illness as a disabling factor, but
plaintiff does not claim a period of insanity. See Mass.
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Gen. L. ch. 260, 7. In any event, the complaint alleges
facts which show that during the relevant period plaintiff
understood his legal rights, employed counsel, and actively
pursued legal claims relating to his disability in the Irish
courts. His injury is thus not one recognized as disabling
for purposes of tolling the statute. See McGuinness v.
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Cotter, 412 Mass. 617, 624 n.9, 591 N.E.2d 659, 663 n.9
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(1992) (holding that a mental disability tolls the statute
when it prevents the plaintiff from "comprehending his legal
rights," or pursuing a lawsuit); Pederson v. Time, Inc., 404
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Mass. 14, 16, 532 N.E.2d 1211, 1212 (1989) (same under prior
wording of the statute).
(4) Under Massachusetts law, the determination of
whether the contract or tort statute of limitations applies
is controlled by the "essential nature of the party's claim."
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Royal-Globe Ins. Co. v. Craven, 411 Mass. 629, 636, 585
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N.E.2d 315, 319 (1992). A pivotal factor is the nature of
the acts upon which the defendant's liability is predicated.
Compare
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Royal-Globe Ins. Co., 585 N.E.2d at 319-20 (holding that suit
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is in contract where liability is predicated on defendant's
breach of a contract to indemnify for injuries physically
caused by another) with Thomas v. Massachusetts Bay Transp.
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Auth., 389 Mass. 408, 450 N.E.2d 600 (1983) (holding the suit
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is in tort where liability is predicated on defendant's
physically injurious acts, despite collateral contract
between the parties). The gravamen of plaintiff's complaint
is that defendant engaged in physically injurious acts
against him. Although he alleges incidental contracts that
impose other obligations, the personal injury he claims does
not arise from those contracts. Accordingly, the three-year
statute of limitations governs this action.
(5) The purported judgment of the Irish Supreme
Court awarding to plaintiff a pension from University College
Cork is irrelevant to the issues before us.2 Harvard was
not a party to the alleged Irish litigation. The Irish
court's alleged refusal to issue a summons for service on
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2. We do not reach questions of the authenticity,
completeness or timeliness of plaintiff's reply brief
submission of xerox copies of the purported Irish judgment
and related documents, because plaintiff's description of
the litigation shows its irrelevancy to the issues at hand.
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Harvard because of "forum conveniens", does not, as plaintiff
urges, evidence a determination by that court of the
Massachusetts limitations question. We perceive in
plaintiff's arguments no reason for deviating from the
general rule that binds only
parties and their privies to a final judgment. Moreover,
when different claims are asserted in a subsequent action, a
party to the first action is estopped only as to issues that
were actually litigated, actually determined, and essential
to the first judgment. See generally Miles v. Aetna Casualty
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& Sur. Co., 412 Mass. 424, 426, 589 N.E.2d 314, 316 (1992)
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(applying the general rule as stated in Montana v. United
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States, 440 U.S. 147, 153 (1979) and the Restatement (Second)
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of Judgments 27 (1982)).
Finally, we see no merit in plaintiff's claim that
the district court denied him an opportunity to be heard in
opposition to defendant's motion to dismiss. By district
court rule, plaintiff had the right to file a written
opposition to the motion and to request oral argument. D.
Mass. R. 7.1(B)(2), (D). He acknowledges that he did not
exercise these rights during the seven weeks following
service of the motion (six weeks following his receipt of
it). Instead, he argues that six weeks was too short (and by
implication so was the 14-day period provided by the rule),
yet he offers no satisfactory reason why he also failed to
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exercise his right to request an enlargement of time. D.
Mass. R. 7.1(B)(2). We do not credit plaintiff's attempt to
shift responsibility to the defendant and the court to insure
that he learns of his rights under published procedural
rules. Plaintiff allegedly holds advanced degrees in law,
including two from institutions in this country. His "pro se
status does not absolve him from compliance with . . . the
district court's procedural rules." FDIC v. Anchor
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Properties, 13 F.3d 27, 31 (1st Cir. 1994).3
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The posture of this case does not require us to
address other apparent infirmities in plaintiff's complaint.
Accordingly, the judgment below is affirmed.
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3. Though not necessary to our disposition, we note that
plaintiff suffered no prejudice from his failure to file an
opposition. Plaintiff's complaint, which was before the
court, predicted the limitations issue and included the same
responsive arguments which plaintiff raises on appeal. The
court did not enter a default judgment, but properly
considered the merits of the motion in light of the papers on
file. See Mullen v. St. Paul Fire & Marine Ins. Co., 972
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F.2d 446, 451 (1st Cir. 1992).
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