Carreras-Rosa v. Alves-Cruz

• Court: Court of Appeals for the First Circuit
• Decided: October 10, 1997
• Docket: 96-2370
• Status: Published

Opinion

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:



                                         -4-



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.



                                         -5-



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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