Cote v. Vetter
This text of Cote v. Vetter (Cote v. Vetter) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Bluebook
Cote v. Vetter, (1st Cir. 1994).
Opinion
USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1649
ALFRED F. COTE,
Plaintiff, Appellant,
v.
WAYNE E. VETTER, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
___________________
____________________
Before
Cyr, Boudin and Stahl,
Circuit Judges.
______________
____________________
Alfred F. Cote on brief pro se.
______________
Mark S. Gearreald and Engel, Gearreald & Gardner, P.A. on brief
__________________ _________________________________
for appellees.
____________________
July 8, 1994
____________________
Per Curiam. In 1993, Alfred F. Cote, a New
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Hampshire inmate, filed this action under 42 U.S.C. 1983
claiming that Vetter, a county sheriff, and two deputy
sheriffs, Janvrine and Powers, had manifested
unconstitutional conduct when they executed Cote's
extradition to Illinois on July 22, 1987. The district court
dismissed the suit as untimely. We affirm.
The parties do not dispute that New Hampshire law
applies to this case. Although Cote has attempted to invoke
other statutory limitations periods, New Hampshire's three-
year personal injury statute of limitations, N.H. Rev. Stat.
Ann. (RSA) 508:4, governs this 1983 action. Wilson v.
______
Garcia, 471 U.S. 261, 276-80 (1985) (state law limitation
______
period, tolling and revival provisions apply). As Cote's
claim arose out of the events surrounding his extradition
from New Hampshire to Illinois on July 22, 1987, the
limitations period under RSA 508:4 expired on July 22, 1991.
Thus, this action, filed on January 26, 1993 in the New
Hampshire federal district court, is barred unless Cote can
take advantage of New Hampshire's saving statute, RSA 508:10.
The statute, entitled "Second Suit", provides:
If judgment is rendered against
the plaintiff in an action
brought within the time limited
therefor, or upon a writ of
error thereon, and the right of
action is not barred by the
judgment, a new action may be
brought thereon in one year
-2-
after the judgment.
While the statute is "designed to insure a diligent suitor
the right to a hearing in court until he reaches a judgment
on the merits," Adams v. Sullivan, 110 N.H. 101, 105, 261
_____ ________
A.2d 273, 276 (1970), "[o]nly where the cause has become
barred by the general limitation [RSA 510:4] does a plaintiff
have occasion to rely upon RSA 508:10." Hughes v. Hebert,
______ ______
106 N.H. 176, 178, 207 A.2d 432, 433 (1965). Thus, when a
timely action is later dismissed "for reasons not barring the
right of action or determining it on its merits," id., a new
___
action, arising out of the same transaction or occurrence,
may be brought within a year of the judgment, providing the
general limitation period will or has run.
According to Cote, this complaint was first filed
against these defendants, and others, in federal district
court in the Northern District of Illinois on June 1, 1988.
On February 8, 1989, the court granted defendants' motion to
dismiss concluding, inter alia, that it lacked personal
_____ ____
jurisdiction over Vetter, Powers and Janvrine because they
had not performed any acts in Illinois. Cote v. Kontos, et
____ __________
al., No. 88-C-4751, Memorandum Opinion and Order (N.D. Ill.
___
Feb. 7, 1989). Cote's appeal from that judgment was
voluntarily dismissed under Fed. R. App. P. 42(b) on August
21, 1990.
Clearly, when judgment entered in the Illinois
-3-
federal district court on February 7, 1989, the three-year
limitation period had not yet expired, precluding operation
of the saving statute. Even if we were to consider the date
of the voluntary dismissal of the appeal, August 21, 1990, as
the operative "judgment" under RSA 508:10, Cote would have
only derived an additional year to revive his suit, that is,
until August 21, 1991.1 Thus, under either scenario, Cote's
action is untimely and was properly dismissed.
Cote attempts to avoid this result by pointing to a
third and intervening 1983 action which he filed in the New
Hampshire district court in April 1990, within the three-year
limitation period. Cote v. Rockingham County, et al., No.
____ __________________________
90-CV-152. Vetter, Powers, and Janvrine were not originally
named defendants in that action. Cote was allowed to file an
amended complaint naming them. However, on September 2,
1992, that amended complaint was dismissed by a magistrate-
judge and the case proceeded against the original defendants.
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Related
Wilson v. Garcia
471 U.S. 261 (Supreme Court, 1985)
Adams v. Sullivan
110 N.H. 101 (Supreme Court of New Hampshire, 1970)
Hughes v. Hebert
207 A.2d 432 (Supreme Court of New Hampshire, 1965)
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