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Carreras-Rosa v. Alves-Cruz, 96-2370 (1997)

Court: Court of Appeals for the First Circuit Number: 96-2370 Visitors: 11
Filed: Oct. 10, 1997
Latest Update: Mar. 02, 2020
Summary:  1To the extent that Puerto Rico law provides that the day, 1, that an action accrues is not counted as the first day of the, limitations period, it is consistent with Fed. Article 388 prevailed, so that the limitations period began applies in this 1983 action filed in the district court for
USCA1 Opinion












UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________


No. 96-2370


LUIS CARRERAS-ROSA AND FRANCISCO SOLER-ROSA,

Plaintiffs, Appellants,

v.

MELVIN ALVES-CRUZ, ET AL.,

Defendants, Appellees.

____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge] ___________________

____________________

Before

Selya, Circuit Judge, _____________
Campbell, Senior Circuit Judge, ____________________
and Lynch, Circuit Judge. _____________

____________________

Antonio Bauza-Torres on brief for appellants. ____________________
Carlos Lugo-Fiol, Solicitor General, Edda Serrano-Blasini, Deputy ________________ ____________________
Solicitor General, and Edgardo Rodriguez-Quilichini, Assistant _____________________________
Solicitor General, Department of Justice, on brief for appellee Melvin
Alves-Cruz.


____________________

October 9, 1997
____________________
















Per Curiam. This appeal concerns the judgment __________

dismissing a 42 U.S.C. 1983 complaint as untimely under the

applicable Puerto Rico statute of limitations. We write to

clarify that, applying Puerto Rico law, the day plaintiffs'

action accrued should not be counted as the first day of the

limitations period and that the limitations period begins to

run on the following day. The prior decisions of this court

and the district court for Puerto Rico may have been somewhat

inconsistent on that point. Therefore we take this

opportunity to resolve any uncertainty.

I. Background I. Background

Plaintiffs' brother was shot and killed by the

defendants, policemen in Puerto Rico on May 19, 1994.

Plaintiffs learned of the death on May 20, 1994. They filed

their 1983 complaint on May 22, 1995.

Defendants moved to dismiss based on the applicable one-

year statute of limitations, Article 1868(2) of the Civil

Code, P.R. Laws Ann. tit. 31, 5298(2). Plaintiffs

responded that they did not know of their cause of action

until they received an autopsy report in early May 1995. The

district court rejected plaintiffs' analysis and determined

that the action accrued on May 20, 1994. The district court

further concluded that the complaint filed on May 22, 1995,

was two days too late and so entered judgment dismissing the

complaint.



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Plaintiffs moved to vacate the judgment of dismissal,

arguing that the day of accrual, May 20, 1994, should not be

counted, so that the 365-day limitations period ran from May

21, 1994, until Saturday, May 20, 1995. They further argued

that their complaint was timely filed on Monday, May 22,

1995, the next court day. The district court summarily

denied that motion.

This appeal followed. The parties' briefs did not

adequately address the question whether the day of accrual

should be counted as the first day of the limitations period,

and so supplemental briefs were ordered. Now that the issue

has been fully briefed, and as the facts are fully laid out

upon the record, we are prepared to decide the appeal without

further argument. See 1st Cir. Loc. R. 34.1(a)(2)(iii). ___

II. Discussion II. Discussion

The limitation period for filing this 1983 claim is

governed by the applicable state statute of limitations for

personal injury actions. See Wilson v. Garcia, 471 U.S. 261, ___ ______ ______

278-80 (1985). In Puerto Rico the applicable limitation

period for tort actions is one year. Article 1868(2) of the

Civil Code, P.R. Laws Ann. tit. 31, 5298(2); Torres v. ______

Superintendent of Police, 893 F.2d 404, 406 (1st Cir. 1990). ________________________

One year means 365 days, or 366 days in leap year. Olivo _____

Ayala v. Lopez Feliciano, 729 F. Supp. 9, 10 (D.P.R. 1990); _____ ________________





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Yeinsip v. Lufthansa German Airlines, 725 F. Supp. 113, 115 _______ __________________________

(D.P.R. 1989).

Although the limitations period is determined by state

law, the date of accrual is a federal law question. The

accrual period for a 1983 action "ordinarily starts when

the plaintiff knows, or has reason to know, of the injury on

which the action is based." Rivera-Muriente v. Agosto- _______________ _______

Alicea, 959 F.2d 349, 353 (1st Cir. 1992). In this ______

particular case, it is clear that the date of accrual is May

20, 1994, the date on which plaintiffs learned of their

brother's death.

The question that concerns us here is whether the

limitations period begins on the date of accrual or the

following day. In this 1983 case brought in Puerto Rico,

Puerto Rico law governs the limitations period, including the

"closely related questions of . . . application." See ___

Wilson, 471 U.S. at 269. Thus, when the federal court ______

borrows the state statute of limitations, so too the date on

which the limitations period starts to run should be

determined by the state law defining the "application" of the

limitations period. Accordingly, we determine the question

under Puerto Rico law.1 1


____________________

1To the extent that Puerto Rico law provides that the day 1
that an action accrues is not counted as the first day of the
limitations period, it is consistent with Fed. R. Civ. R.
6(a), which provides:

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The prior opinions of the Puerto Rico district court and

this court may have been somewhat inconsistent in determining

the first day of the limitations period. The inconsistencies

appear to stem from differing applications of two provisions

of Puerto Rico law and a Puerto Rico court rule. Article 388

of the Political Code, P.R. Laws Ann. tit. 1, 72, provides:

The time in which any act provided by law
is to be done is computed by excluding
the first day, and including the last,
unless the last day is a holiday, and
then it is also excluded.

Similarly, as relevant here, Rule 68.1 provides:

In computing any period of time
prescribed or allowed by these rules, by
order of the court, or by any applicable
statute, the day of the act, event or
default from which the designated period
of time begins to run shall not be
included. . . .

In contrast, Article 1869 of the Civil Code, P.R. Laws Ann.

tit. 31, 5299, provides:

The time for the prescription of all
kinds of actions, when there is no
special provision to the contrary, shall
be counted from the day on which they
could have been instituted.




____________________

In computing any period of time
prescribed or allowed by . . . any
applicable statute, the day of the act,
event or default from which the
designated period of time begins to run
shall not be included.
Therefore, the result here would be the same whether federal
law or Puerto Rico law were applied.

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In some federal cases, with which we now disagree,

Article 1869 was thought to prevail, so that the limitations

period was held to include the first day that the action

could have been instituted. See Ramirez Morales v. Rosa ___ ________________ ____

Viera, 632 F. Supp. 491, 492 (D.P.R. 1986), aff'd, 815 F.2d 2, _____ _____

4-5 (1st Cir. 1987); Olivo Ayala, 729 F. Supp. at 10; Dennis ___________ ______

v. Figueroa, 642 F. Supp. 959, 961 (D.P.R. 1986); de la Cruz ________ __________

LaChapel v. Chevere Ortiz, 637 F. Supp. 43, 44 (D.P.R. 1986); ________ _____________

see also Altair Corp. v. Pesquera de Busquets, 769 F.2d 30, ________ _____________ ____________________

33 (1st Cir. 1985). And in dicta this court has equated the

date of accrual with the first day of the limitations period:

"[The] date of accrual, i.e., the day on which the ____

limitations clock begins to tick, is determined by reference

to federal law." Muniz-Cabrero v. Ruiz, 23 F.3d 607, 610 _____________ ____

(1st Cir. 1994) (precise dates were not dispositive in that

case).

However, in other cases, with which we now agree,

Article 388 prevailed, so that the limitations period began

on the day following the date of accrual. See Salamanca v. ___ _________

American Airlines, Inc., 920 F. Supp. 24, 26 (D.P.R. 1996); ________________________

Conde v. Beltran Pena, 793 F. Supp. 33, 35-36 (D.P.R. 1992); _____ ____________

Yeinsip, 725 F. Supp. at 115; see also Silva-Wiscovich v. _______ _________ _______________

Weber Dental Manufacturing Co., 835 F.2d 409, 409 (1st Cir. _______________________________

1987).





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We now conclude that the method of computing the

limitations period followed in Salamanca, Conde, and Yeinsip _________ _____ _______

applies in this 1983 action filed in the district court for

Puerto Rico:

the day in which a tort cause of action
arises counts in the sense that it
provides the starting point for the
computation of the prescriptive term; it
is not, however, counted within that
term.

Salamanca, 920 F. Supp. at 26. _________

We reach this conclusion because, as the district court

in Salamanca noted, the Puerto Rico Supreme Court has held _________

that Article 388 (not counting the first day) applies to the

statute of limitations for tort actions, which statute also

prescribes this 1983 action. E.g., Comunidad Agricola ____ ___________________

Bianchi v. Superior Court, 99 P.R.Dec. 366, 368 (1970); Ortiz _______ ______________ _____

v. American Railroad Co., 62 P.R.Dec. 171, 176-77 (1943); ______________________

Cintron v. Insular Industrial & Agricultural Exposition _______ ________________________________________________

Ass'n, 58 P.R.Dec. 821, 828 (1941); see also Escalera v. _____ _________ ________

Andino, 76 P.R.Dec. 251, 254 (1954). As the district court ______

in Yeinsip explained, Article 1869 "is a suppletory _______

[provision], to be applied only if no special law over the

matter has been adopted," and Article 388 "is a specific

statute which regulates the computation of legal periods of

time," so that Article 388 controls. 725 F. Supp. at 115.

Here, applying the correct rule to compute the

prescriptive period, plaintiffs' action accrued on May 20,


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1994, but the statute of limitations did not begin to run

until the next day, May 21, 1994. The applicable 365-day

period would have expired on Saturday, May 20, 1995, but,

excluding the weekend days, the limitations period extended

to the following Monday. It follows that plaintiffs'

complaint was timely filed on Monday, May 22, 1995.

Accordingly, we vacate the judgment of the district ______

court dismissing the complaint and remand for further ______

proceedings.



































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Source:  CourtListener

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