Edwards v. First American

Opinion

USCA1 Opinion

March 29, 1994
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 93-1873 

                                A. GREER EDWARDS, JR.,

                                Plaintiff, Appellant,

                                          v.

              FIRST AMERICAN TITLE INSURANCE COMPANY OF NEVADA, ET AL.,

                                Defendants, Appellees.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                            Selya and Cyr, Circuit Judges.
                                           ______________

                                 ____________________

            A. G. Edwards, Jr. on brief pro se.
            __________________
            Richard B.  Couser and Orr and  Reno, P.A. on  brief for appellees
            __________________     ___________________
        First  American  Title Insurance  Company,  John  Hancock Mutual  Life
        Insurance  Company,  Harold  Pearson  III,  William  Gordon,  John  G.
        McElwee, Stephen Brown, Thomas L. McKiernan and Arthur Duncan.
            Martha  V. Gordon  and Nelson,  Kinder,  Mosseau  & Gordon,  PC on
            _________________      ________________________________________
        brief for appellees Prince A. Hawkins and Hawkins, Rhodes & Sharp.

____________________

____________________

Per  Curiam.   Plaintiff-appellant  A.  G. Edwards,
                      ___________

            Jr.,  has brought a pro  se appeal from  the district court's

            judgment dismissing Edwards'  claims against nine defendants:

            the John Hancock Mutual  Life Insurance Co. ("John Hancock"),

            six John Hancock employees,  Nevada attorney Prince  Hawkins,

            and the Nevada law firm of Hawkins,  Rhodes & Sharp.  Edwards

            also appeals  from the  district court's  ruling transferring

            Edwards' claims against  the remaining  defendant, the  First

            American  Title  Insurance  Co.  ("First  American"), to  the

            District of Nevada on grounds of  convenience under 28 U.S.C.

              1404(a).

                      In the 1970's the  Saval Ranching Co. ("Saval"), of

            which Edwards  was part owner and later  sole owner, borrowed

            money  from  John Hancock.    As  security, Saval  gave  John

            Hancock deeds  of trust to  two commercial cattle  ranches in

            Nevada owned  by Saval.   In  1985, at  a  time when  Edwards

            resided in Massachusetts, John Hancock foreclosed on  Saval's

            ranches.   John Hancock  foreclosed  through First  American,

            which was John  Hancock's trustee  on the deeds  of trust  to

            Saval's ranches.   Hawkins and his law firm  represented John

            Hancock in the foreclosure proceedings.  

                      The  deeds  of trust  to Saval's  ranches expressly

            included the mineral, oil, and gas rights pertaining to those

            ranches.   In  preparing for  the foreclosure  sale, however,

            First American  excluded these  mineral, oil, and  gas rights

from the published description of the  properties to be sold.

            Although he could not bid on the properties, Edwards attended

            the  August 15, 1985 Nevada  foreclosure sale.   At that sale

            the United  States government  purchased  the properties  and

            acquired  the  release  of  John Hancock's  interest  in  the

            properties.  Edwards subsequently moved from Massachusetts to

            New Hampshire.  

                      The  U.S. then  filed suit  against Edwards  in the

            federal  district  court  in  Nevada to  recover  a  $600,000

            deficiency.  The Nevada  court ruled on January 5,  1988 that

            First American  had  violated applicable  Nevada  foreclosure

            statutes by excepting  the mineral, oil, and  gas rights from

            the  description  of  the  properties,  and  invalidated  the

            foreclosure.   In 1989, Edwards  and the U.S.  entered into a

            settlement agreement  by which  the U.S. transferred  all its

            interest in the  properties to Edwards in return for a sum of

            money.

                      On  January 25,  1991,  Edwards filed  suit in  the

            District Court for the District of Massachusetts against John

            Hancock.   The suit, which included claims for negligence and

            for breach of contract, sought damages for the underinclusive

            property description  in the notices of  the foreclosure sale

            of the Saval ranches.   The district court dismissed Edwards'

            negligence claim  as time-barred, and  dismissed his contract

            claim  on the  merits.   On  September  4, 1992,  this  court

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affirmed the  dismissal of the negligence  claim, vacated the

            dismissal  of the  contract claim,  and remanded  for further

            proceedings.  Edwards  v. John Hancock Mutual  Life Ins. Co.,
                          _______     _________________________________

            973 F.2d 1027 (1st Cir. 1992).

                      Edwards filed the instant  pro se lawsuit on August

            12,  1991 in  the  District Court  for  the District  of  New

            Hampshire.  His original  complaint named only First American

            and sought damages  for First  American's alleged  negligence

            and breach  of contract in carrying out the foreclosure sale.

            On June 2, 1992, Edwards filed an amended pro se complaint in

            which he  added  the other  nine  defendants and  also  added

            additional grounds for relief.  

                      On March 23, 1993, the district court (1) dismissed

            Edwards'  claims against  the eight  non-corporate defendants

            for  lack  of personal  jurisdiction  in  New Hampshire;  (2)

            dismissed Edwards'  claims against  John Hancock in  light of

            Edwards'  pre-existing  suit  against  John  Hancock  in  the

            District  of  Massachusetts;  and  (3)  transferred  Edwards'

            claims  against  First American  to  the  District of  Nevada

            pursuant to  28 U.S.C.    1404(a).   Edwards appeals,  having

            been  issued a  Fed.  R. Civ.  P.  54(b) certificate  by  the

            district court.  

Claims Against the Eight Non-Corporate Defendants
                   _________________________________________________

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The  district  court   dismissed  Edwards'   claims

            against the  eight non-corporate defendants --  i.e., the six

            John  Hancock  employees  (Pearson, Gordon,  McElwee,  Brown,

            McKiernan, and Duncan), Nevada attorney Hawkins, and Hawkins'

            law  firm -- on the ground that New Hampshire lacked personal

            jurisdiction  over any of them under  the New Hampshire long-

            arm statute, N.H. Rev. Stat. Ann.   510:4.  

                      Although Edwards appears to concede in his brief on

            appeal  that New Hampshire  lacked personal jurisdiction over

            these eight defendants, in his reply brief he insists that he

            did not mean to  waive that issue.  Assuming,  arguendo, that

            the issue is properly before us, we would affirm the district

            court's  ruling on this point  for the reasons  stated in the

            district  court's March  23,  1993 order.    Edwards did  not

            adequately allege that any of  these non-corporate defendants

            --   as  distinguished  from   their  corporate  employer  or

            principal,   John  Hancock  --   transacted  business,  owned

            property, or committed a tortious act in New Hampshire within

            the meaning of the New Hampshire  long-arm statute, N.H. Rev.

            Stat. Ann. 510:4.  There is no dispute  that the alleged tort

            --  underinclusive  description   of  Saval's  properties  in

            connection  with the  1985  foreclosure sale  -- occurred  in

            Nevada  and that  Edwards  resided in  Massachusetts at  that

            time.   Since  this is not  a continuing tort,  the fact that

            Edwards  moved to  New Hampshire  after the  foreclosure sale

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does not mean that the alleged tort occurred, in part, in New

            Hampshire.   

                      Edwards  argues that  instead  of dismissing  these

            claims, the district court should have transferred the claims

            to another forum which  would have personal jurisdiction over

            these eight non-corporate defendants.  The district court did

            not deal with this point in its opinion.

                      Edwards  bases his  argument on  28 U.S.C.    1631,

            which provides that whenever  a "court finds that there  is a

            want  of jurisdiction,  the  court shall,  if  it is  in  the

            interest of justice, transfer such action  . . . to any other

            such court in which the action  . . . could have been brought

            at the time it was filed."  There is no question in this case

            that the  district court  had jurisdiction over  the subject-

            matter of this action; it was personal jurisdiction  that was

            lacking.    Some  courts   and  commentators,  relying  on  a

            construction  of  the legislative  history  of    1631,  have

            suggested  that a court may  transfer an action  under   1631

            only when  it lacks subject-matter jurisdiction, not personal
                                                             ___

            jurisdiction.   See, e.g., Levy v. Pyramid Co. of Ithaca, 687
                            ___  ___   ____    _____________________

            F.  Supp. 48, 51 (N.D.N.Y. 1988), aff'd, 871 F.2d 9 (2nd Cir.
                                              _____

            1989);  15 Wright,  Miller,  & Cooper,  Federal Practice  and

            Procedure   3842, at 323 (2nd ed. 1986).   By contrast, other

            courts  -- pointing to the  language of    1631 itself, which

            speaks of "jurisdiction" and  makes no further distinction --

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have  held that     1631 does  permit  a transfer  where  the

            tranferor court lacks personal jurisdiction.  See, e.g., Ross
                                                          ___  ___   ____

            v. Colorado Outward  Bound School, Inc., 822  F.2d 1524, 1527
               ___________________________________

            (10th   Cir.   1987);  United   States   v.  American   River
                                   _______________       ________________

            Transportation, Inc., 150 F.R.D. 587  (C.D. Ill. 1993).  This
            ___________________

            court has yet to rule on the issue.    

                      We  need not  do so  here.   Regardless  of whether

            transfer  is sought under    1631, under 28  U.S.C.   1404(a)

            (which provides  that "[f]or  the convenience of  parties and

            witnesses, in the interest  of justice, a district  court may

            transfer any civil  action to any other district  or division

            where  it might  have been  brought"), or  under 28  U.S.C.  

            1406(a)  (which  provides that  "[t]he  district  court of  a

            district in which  is filed a case laying venue  in the wrong

            division  or district  shall  dismiss, or  if  it be  in  the

            interest of justice,  transfer such case  to any district  or

            division in  which  it could  have been  brought"), we  would

            affirm  the denial  of  a transfer  because  all of  Edwards'

            claims against  the eight non-corporate defendants were time-

            barred,  under  all statutes  of  limitations  that might  be

            applicable,  at the time he filed those claims in the instant

            case.  A federal court may  not transfer an action to another

            court under   1631 if the action was time-barred  at the time

            it was  filed.  See, e.g.,  Billops v. Department  of the Air
                            ___  ___    _________________________________

            Force,  725  F.2d 1160,  1163  (8th Cir.  1984).   Similarly,
            _____

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transfer  under either   1404(a) or   1406(a) would not serve

            the  interests of justice where the action was time-barred at

            the time it was filed.   See, e.g., McTyre v. Broward General
                                     ___  ___   ______    _______________

            Medical Center, 749 F.Supp. 102, 105-09 (D.N.J. 1990).
            ______________

                      Edwards asserted  six causes of action against some

            or all of these eight defendants:  (1) negligence; (2) breach

            of  contract; (3) breach of an implied covenant of good faith

            and fair dealing; (4)  violation of RICO, 18 U.S.C.     1961-

            68;  (5) violation of  the Massachusetts  Consumer Protection

            Act, Mass. Gen. Laws  93A; and (6) deceptive  trade practices

            under  Nevada statutes.  In Edwards' prior appeal arising out

            of the similar action  Edwards brought in Massachusetts, this

            court  has already  ruled that Edwards'  cause of  action for

            negligence was  time-barred under  Massachusetts law  at some

            time before  January 1991, i.e., before  Edwards filed either

            the complaint or the amended complaint in the instant action.

            Edwards, supra, 973 F.2d at 1029-30.
            _______  _____

                      All  other possible statutes of limitations for any

            of Edwards' claims -- whether under Nevada, Massachusetts, or

            New Hampshire law --- are six years or  less.  The applicable

            limitations period  for a negligence  action is six  years in

            New  Hampshire, N.H. Rev. Stat. Ann. 508:4, I, and four years

            in  Nevada, Nev. Rev. Stat.    11.190, 2(c).   The applicable

            limitations period  for a contract  action, or an  action for

            breach of an implied covenant of  good faith, is six years in

-8-

Massachusetts, Mass. Gen. Laws c. 260,   2; six  years in New

            Hampshire, N.H. Rev. Stat.  Ann. 508:4, I; and either  six or

            four years in Nevada,  Nev. Rev. Stat.   11.190,  1(b), 2(c).

            The limitations period for a civil RICO action is four years.

            Agency Holding  Corp. v. Malley-Duff &  Associates, Inc., 483
            _____________________    _______________________________

            U.S. 143, 156 (1987).   The limitations period for  an action

            under Mass. Gen. Laws c. 93A is four years.   Mass. Gen. Laws

            c. 260,   5A.   Finally, Edwards has not  disputed appellees'

            assertion  that the  limitations period  for an  action under

            Nevada  deceptive trade  practices  statutes is  four  years.

            Nev. Rev. Stat.    598A.220, 11.220.  

                      This court already has  strongly suggested, if  not

            expressly held,  that under Massachusetts law  Edwards' cause

            of  action  for  negligence  accrued   by  the  time  of  the

            foreclosure sale, i.e., by August 15, 1985.   Edwards, supra,
                                                          _______  _____

            973 F.2d at 1029-30.   Appellees urge that this  accrual date

            should govern all of Edwards' causes of action.

                      Edwards has  given no reason,  and we see  none, to

            think  that his  contract-based  claims  and  his  tort-based

            claims should be governed by different accrual dates.  In his

            brief  on appeal,  moreover, Edwards  expressly accepted  the

            August 15, 1985 accrual date.  

                      In   his  reply   brief,  Edwards   does  belatedly

            challenge this  accrual date.   However, his  only challenge,

            whether  as  a matter  of  Massachusetts,  New Hampshire,  or

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Nevada law, is his  contention that his causes of  action did

            not  accrue  until mid-1990,  when  the  U.S. Forest  Service

            allegedly cancelled  his grazing permit for  livestock on his

            Saval ranches.  He alleges that this cancellation "[d]irectly

            deriv[ed]" from the defective foreclosure sale and caused him

            substantial economic harm.  

                      This argument has no  merit because there has been,

            and can be, no dispute that Edwards was on notice of possible

            substantial injury  as of  the August 1985  foreclosure sale,

            when the underinclusive property description may have  caused

            the Saval ranches to  be sold for a lower price.   A cause of

            action  accrues when  a plaintiff  has "knowledge,  actual or

            attibuted, of  both harm to it  and the likely  cause of such

            harm, . . . sufficient to stimulate further inquiry which was

            likely to alert it to a cause of action against a defendant."

            Hanson  Housing Authority  v. Dryvit  System, Inc.,  29 Mass.
            _________________________     ___________________

            App. Ct. 440, 446,  560 N.E.2d 1290, 1294 (1990),  rev. den.,
                                                               ___  ___

            409  Mass. 1101,  565 N.E.2d  792  (1991).   The fact  that a

            plaintiff subsequently  suffers some additional harm that may

            be traced to the same likely cause does  not delay accrual of

            the cause  of action.   Id.  ("It  is not  required that  the
                                    __

            extent  of injury  be  known before  accrual  of a  cause  of

            action");  Rowe v. John Deere,  130 N.H. 18,  21-23, 533 A.2d
                       ____    __________

            375, 376-78  (1987).  See  Sorenson v.  Pavlikowski, 94  Nev.
                                  _____________     ___________

            440, 443-44, 581 P.2d 851, 853-54 (1978).  

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Accordingly, with an accrual  date of no later than

            August 15, 1985, the latest Edwards could have brought any of

            his claims  against any  of these  defendants was  August 15,

            1991.    Edwards'   amended  complaint  naming   these  eight

            defendants was not filed until June 2, 1992.

                      Although  Edwards'  original  complaint  was  filed

            three  days before August  15, 1991, it  did not name  any of

            these defendants.  Edwards has not argued that the provisions

            of Fed. R. Civ.  P. 15(c) -- setting forth  the circumstances

            under which claims raised in an  amended complaint can relate

            back  to the time the  original complaint was  filed -- apply

            here.   Even if he had  raised this argument --  we note that

            both  appellees'  briefs  do   discuss  this  point,  despite

            Edwards' failure to raise it -- we see no merit in it.  

                      Fed. R. Civ. P. 15(c)(1) permits relation back when

            "relation  back is  permitted by  the law  that  provides the

            statute  of limitations applicable  to the action."   None of

            the statutes of limitations  which may possibly apply to  any

            of Edwards' claims contains such a provision.

                      Fed. R. Civ. P. 15(c)(2) permits relation back when

            "the claim or defense asserted  in the amended pleading arose

            out of  the conduct, transaction, or occurrence  set forth or

            attempted  to be set forth  in the original  pleading."  This

            provision  governs the assertion of new  legal theories in an

            amended  complaint,  and  does  not apply  when  the  amended

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complaint  seeks  to  add  new  parties.    See  Jacobson  v.
                                                        _____________

            McIlwain, 145 F.R.D. 595, 603 (S.D. Fla. 1992).
            ________

                      Finally, Fed. R. Civ. P. 15(c)(3) permits  relation

            back  of an  amendment  adding  new  parties when  the  claim

            asserted arose out of  the conduct set forth in  the original

            pleading,  as required  by  Rule 15(c)(2),  "and, within  the

            period  [120 days] provided by  Rule 4(j) for  service of the

            summons  and  complaint,  the  party  to  be  brought  in  by

            amendment (A)  has received such notice of the institution of

            the  action  that  the  party  will   not  be  prejudiced  in

            maintaining a defense on  the merits, and (B) knew  or should

            have known that, but for a mistake concerning the identity of

            the proper party, the action would have been brought  against

            the  party."   Edwards  meets  neither  of these  latter  two

            requirements here.  

                      Edwards has  said nothing  to indicate that  any of

            the  eight  non-corporate  defendants  named  in  the amended

            complaint  received notice  of the original  complaint within

            120 days of its filing.  Nor is there anything  in the record

            to  suggest  that Edwards  made  some  mistake regarding  the

            proper party to  be sued,  rather than merely  deciding at  a

            later  time to  sue  further  parties  in addition  to  First

            American.   Indeed, Edwards  himself acknowledged as  much in

            his memorandum in support  of his motion to file  the amended

            complaint, when he stated, "The plaintiff has further studied

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his  cause of  Action  in  this  matter  and  has  found  the

            justification to  enlarge  his Complaint  by adding  relevant

            supplementary  averments  and  by naming  related  additional

            appropriate Defendants."   

                      Edwards argues in his brief on appeal that after he

            filed his  original complaint, and  also after  he filed  his

            amended complaint, the clerk of the district court improperly

            delayed  issuing a  summons as  required by  Fed. R.  Civ. P.

            4(a).    This  impropriety,  according  to  Edwards,  delayed

            service of process upon the defendants.  

                      We need not  consider this matter  because Edwards'

            contention, even if true, is irrelevant to our decision.  All

            of Edwards' claims against the eight non-corporate defendants

            were  time-barred  before  June  2, 1992,  when  the  amended

            complaint naming these defendants  was filed.  Any subsequent

            delay in  service of process on  these defendants, therefore,

            was beside the  point.   Even if somehow  the district  court

            clerk  improperly  prevented  Edwards  from  providing  these

            defendants with timely notice  of his original complaint, and

            those  circumstances  somehow  satisfied   Fed.  R.  Civ.  P.

            15(c)(3)(A) (points which are by  no means clear), this would

            avail Edwards  nothing, since we have already  held that Fed.

            R. Civ. P. 15(c)(3)(B) was not satisfied.   

Claims Against John Hancock
                            ___________________________

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As we have said, on January 25, 1991 -- well over a

            year  before  the filing  of  his  amended  complaint in  the

            instant case  adding claims  against John Hancock  -- Edwards

            filed a similar suit  in the District Court for  the District

            of Massachusetts, naming John  Hancock as the only defendant.

            Edwards' Massachusetts lawsuit, like the instant suit, sought

            to recover damages,  based on counts of negligence and breach

            of contract, for  the underinclusive property description  in

            the notices of the foreclosure sale of the Saval ranches.

                      The    district   court   found   that   both   the

            Massachusetts lawsuit  and  Edwards' instant  claims  against

            John Hancock involved  the same issues and  the same parties.

            Accordingly,  the  district court  dismissed  Edwards' claims

            against  John  Hancock,  citing  the   "generally  recognized

            doctrine of federal comity which permits a district  court to

            decline   jurisdiction  over  an   action  when  a  complaint

            involving the same parties and issues has  already been filed

            in another district."  Pacesetter Systems, Inc. v. Medtronic,
                                   _______________________     __________

            Inc., 678 F.2d 93, 94-95 (9th Cir. 1982).  At the time of the
            ___

            district  court's order,  apparently Edwards'  contract claim

            remained  pending in  the  Massachusetts  suit, although  his

            negligence  claim had  been  dismissed as  time-barred.   See
                                                                      ___

            Edwards, supra, 973 F.2d 1027.
            _______  _____

                      Edwards does not appear to challenge this  district

            court  ruling in  his  brief on  appeal.   In  light of  "the

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settled appellate rule  that issues  . .  . unaccompanied  by

            some effort  at  developed argumentation  .  . .  are  deemed

            waived," United States v. Zannino, 895 F.2d 1, 17 (1st Cir.),
                     _____________    _______

            cert. denied, 494 U.S. 1082 (1990), we will not consider this
            ____________

            issue.

Claims Against First American
                           _____________________________

This court lacks appellate jurisdiction to consider

            Edwards' appeal from the district court's ruling transferring

            Edwards'  claims  against defendant-appellant  First American

            Title  Insurance Co. to the District of Nevada pursuant to 28

            U.S.C.    1404(a).  It  is well-settled that  such a transfer

            order under   1404(a) is an interlocutory order and therefore

            is not appealable as a final judgment.  Codex Corp.  v. Milgo
                                                    ___________     _____

            Electronic Corp., 553 F.2d 735, 737 (1st Cir.), cert. denied,
            ________________                                ____________

            434  U.S. 860  (1977).   Since  Edwards  has not  obtained  a

            certificate  for  interlocutory  appeal  under  28  U.S.C.   

            1292(b), we lack jurisdiction over this aspect of his appeal.

                      In any event, even if we had jurisdiction, we would

            affirm the  district court's transfer ruling  for the reasons

            stated  in the district court's  March 23, 1993  order.  Only

            under  unusual  circumstances  would  we  disturb a  district

            court's exercise of discretion in ordering a transfer under  

            1404(a).  Id.   Certainly no  such circumstances exist  here,
                      __

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given the undisputed  facts that  the events  giving rise  to

            Edwards'  claims  occurred  primarily  in  Nevada, the  Saval

            ranches are  in Nevada, and relevant  documents and witnesses

            will be readily available in Nevada.

Conclusion
                                 __________

We  affirm the district  court's denial of Edwards'

            motion for reconsideration.  As the district court stated, if

            viewed as  a Fed. R. Civ.  P. 59(e) motion to  alter or amend

            the judgment, the  motion was untimely because  it was served

            more than ten days after entry of judgment.  Fed.  R. Civ. P.

            59(e).   If viewed as  a Fed.  R. Civ. P.  60(b) motion,  the

            motion stated no possible basis for relief from judgment.

                      We have considered all of Edwards'  other arguments

            and find them meritless.

                      The request of Hawkins  and Hawkins, Rhodes & Sharp

            that sanctions, including attorneys' fees, be awarded against

            Edwards is denied.
                       ______

                      The judgment of the district court is affirmed.
                                                            ________

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