Filed: Sep. 27, 2001
Latest Update: Feb. 21, 2020
Summary: the statute requires.1 There is no suggestion that the district court declined, to exercise supplemental jurisdiction over any pendant state law, claims--a type of dismissal that is deemed a matter of form.motion to extend the time for appeal.before his second action was filed.
[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-1117
GERALD JONES,
Plaintiff, Appellant,
v.
RAYMOND BINETTE, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lynch, Circuit Judges.
Gerald Jones on brief pro se.
David M. Moore, City Solicitor, and Elizabeth M. Sanning,
Assistant City Solicitor, on brief for appellees.
September 26, 2001
Per Curiam. We affirm the judgment substantially
for the reasons set forth in the district court's December
6, 2000 order of dismissal, adding only the following
comments. In an effort to avoid the statute-of-limitations
bar, plaintiff for the first time on appeal invokes Mass.
Gen. Laws ch. 260, § 32. That provision permits the
refiling, within one year, of a duly commenced action that
was dismissed "for any matter of form." It is a remedial
measure "declar[ing] that where the plaintiff has been
defeated by some matter not affecting the merits, some
defect or informality, which he can remedy or avoid by a new
process, the statute [of limitations] shall not prevent him
from doing so." Coffin v. Cottle, 33 Mass. (16 Pick.) 383,
386 (1835) (describing predecessor statute).
We find this statute inapplicable here for at least
three reasons. First, the district court dismissed
plaintiff's initial action in part because he had filed no
opposition to defendants' motions to dismiss. That is not
a "matter of form." See, e.g., Cumming v. Jacobs, 130 Mass.
419, 421 (1881) (holding that dismissal for failure to
prosecute did not so qualify, and noting that predecessor
statute "was not intended to encourage default or negligence
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in the prosecution or conduct of a suit"); King v. Bradlees,
Inc., 1991 WL 204342, at *2 (Mass. App. Div. 1991)
(concluding that dismissal because of counsel's failure to
appear at pretrial conference was not matter of form); see
also Loomer v. Dionne,
338 Mass. 348, 352 (1959) (noting, in
course of finding statute applicable, that there was "no
default or other neglect in the prosecution ... as in
Cumming").
Second, the dismissal in the first action was also
based in part on plaintiff's failure to state a claim. That
was an adjudication on the merits, as to which "principles
of res judicata apply and [ch. 260, § 32] ... has no
pertinence." Liberace v. Conway, 31 Mass. App. Ct. 40, 45
(1991).1
Finally, plaintiff's second suit was not filed
"within one year after the dismissal" of his first suit, as
the statute requires. We need not decide whether, in a case
where an appeal has been pursued, that period ordinarily
begins to run at the time the lower court acts or at the
1 There is no suggestion that the district court declined
to exercise supplemental jurisdiction over any pendant state law
claims--a type of dismissal that is deemed a "matter of form."
See, e.g., Liberace, 31 Mass. App. Ct. at 42-45. Plaintiff's
first complaint did not purport to contain any such claims. And
the court's dismissal, in any event, was with prejudice across
the board.
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time the appellate court does so. Here, plaintiff filed no
timely notice of appeal in his first suit and no timely
motion to extend the time for appeal. The one-year period
thus commenced, at the latest, on the date the appeal period
expired and the judgment became final--well over one year
before his second action was filed.
Affirmed. See Loc. R. 27(c).
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