Wilson v. U.S. Government

• Court: Court of Appeals for the First Circuit
• Decided: May 4, 1994
• Docket: 93-2025
• Status: Published

Opinion

USCA1 Opinion

United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                                 ____________________

        No. 93-2025

                                ROBERT WILSON, ET AL.,

                                      Appellant,

                                          v.

                              UNITED STATES GOVERNMENT,

                                 Defendant, Appellee.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, U.S. District Judge]
                                             ___________________
                    [Hon. Hector M. Laffitte, U.S. District Judge]
                                              ___________________
                                 ____________________

                                        Before

                            Cyr and Stahl, Circuit Judges,
                                           ______________
                             and Pieras,* District Judge. 
                                          ______________

                                 ____________________

            Osvaldo Perez-Marrero for appellant.
            _____________________
            David V. Hutchinson, Assistant  Director, Admiralty Torts  Branch,
            ___________________
        Civil Division, with whom Frank W. Hunger, Assistant Attorney General,
                                  _______________
        Guillermo Gil, United States  Attorney, and Fidel Sevillano, Assistant
        _____________                               _______________
        United States Attorney, were on brief for appellee.

                                 ____________________

                                     May 4, 1994
                                 ____________________

        _____________________
        *Of the District of Puerto Rico, sitting by designation

STAHL, Circuit  Judge.   More than two  years after
                      STAHL, Circuit  Judge.
                             ______________

            suffering  an  injury  at  sea,   plaintiff-appellant  Robert

            Wilson1 attempted  to amend  his complaint against  a private

            party to include the United States as defendant.  The amended

            complaint sought damages under the Public Vessels Act and the

            Suits in  Admiralty  Act,  both  of which  carry  a  two-year

            statute  of limitations.   The  district court  dismissed the

            claims as time-barred,  declining to  apply either  equitable

            tolling,  or   Fed.  R.  Civ.  P.   15(c)'s  "relation  back"

            provisions.  Finding no error, we affirm.

                                          I.
                                          I.
                                          __

                       FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
                       FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
                       ________________________________________

                      On  September  10,  1988, Wilson,  an  employee  of

            General  Electric  Government  Services,   Inc.  (hereinafter

            "GEGS"), whose  job entailed maintaining a  fleet of Seaborne

            Powered  Target Boats (hereinafter  "SEPTARs") for the United

            States  Navy, was  sent to  sea by  GEGS, along  with several

            other  employees, in  a SEPTAR.   Wilson  and the  other crew

            members  became stranded  in Hurricane  Gilbert  and required

            rescue by the Coast Guard.  

                      On September  30, 1988,  and again on  November 23,

            1988,  counsel  for  Wilson   wrote  to  United  States  Navy

            officials  requesting  transcripts  of  radio  communications

____________________

            1.  Wilson,  one of  several  plaintiffs below,  is the  only
            plaintiff to pursue appeal.

                                         -2-
                                          2

recorded  during  the  stranding  incident.     Counsel  also

            requested  the results of  any Navy  investigations regarding

            the incident.  These letters did  not allude in any manner to

            the  possibility that the United  States might be  a party in

            any  capacity to any legal  proceeding. In fact,  at the time

            the requests  were sent, no  complaint against any  party had

            yet been filed.

                      On  September 8,  1989, almost  a year  after these

            requests  to the  Navy, Wilson  and other crew  members filed

            suit against GEGS under  the Jones Act, 46 U.S.C.    688, for

            injuries allegedly  suffered in the stranding  incident.  The

            United  States received no notice of these suits, nor was the

            United States,  or any of its departments  or agencies, named

            as  a party.    On  April 2,  1990,  GEGS  moved for  summary

            judgment,  arguing  that the  United  States  Navy owned  the

            SEPTAR  on which Wilson and the others were injured, and that

            therefore the  United  States was  the only  proper party  in

            interest.   

                      In response  to GEGS's motion for summary judgment,

            Wilson filed a motion  on June 8, 1990, requesting  that GEGS

            be  dismissed from  the suit  and that  the United  States be

            substituted  as defendant.   On June  19, 1990,  the district

            court  dismissed  GEGS from  the  suit  and granted  Wilson's

            motion to amend his complaint.  

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                                          3

Though  the  district court  had granted  leave for

            Wilson to amend  his complaint, more than two  months elapsed

            and  Wilson had  still not  filed an  amended complaint.   On

            September  10, 1990, two years to the day after the stranding

            incident,  the  court  notified  Wilson  that  he  had  until

            September  24, 1990, i.e., fourteen days from the date of the

            order, to file an  amended complaint, or the action  would be

            dismissed for lack of  prosecution.  It is important  to note

            that when the court  issued this deadline, the United  States

            had received no notice that it would be named a  party to the

            suit and the amended complaint had not yet been filed.  Thus,

            as far  as the  record indicates,  no statute  of limitations

            issue was before the district court when it set the September

            24, 1990, deadline.

                      The amended complaint  was filed  on September  25,

            1990,2 the  day after  the deadline  imposed by the  district
                            _____

            court.  It alleged liability under the Public Vessels Act, 46

            U.S.C.    781-90 and the Suits in Admiralty Act, 46 U.S.C.   

            741-52.  Suits under these statutes  carry a two-year statute

            of  limitations.   Along with  the amended  complaint, Wilson

            filed  a motion  requesting the  court to  "relate back"  the

____________________

            2.  Wilson's  brief  misleadingly  states  that  the  amended
            complaint  was filed on September 24, 1990.  The court docket
            and the magistrate's report, however, both list September 25,
            1990   as  the   filing  date   of  the   amended  complaint.
            Furthermore, the  amended complaint included in  the Wilson's
            appendix is date stamped  by the clerk's office "1990  SEP 25
            AM 9:51."

                                         -4-
                                          4

filing  date of the amended complaint to that of the original

            complaint.   The  United  States  was  not  served  with  the

            complaint until  November 16, 1990, fifty-two  days after the

            amended complaint was filed.  On January 8, 1991,  the United

            States  moved to  dismiss  the action  as  time-barred.   The

            matter  was then  referred  to a  magistrate  who found  that

            Wilson had indeed missed  the two-year statute of limitations

            and had provided no basis for either relating back the filing

            date of the amended  complaint, or for equitably tolling  the

            limitations period.   On June  30, 1993,  the district  court

            adopted the magistrate's findings and dismissed the action as

            time-barred.  Wilson appeals from this ruling.

                                         II.
                                         II.
                                         ___

                                      DISCUSSION
                                      DISCUSSION
                                      __________

                      Both  the Suits  in  Admiralty Act  and the  Public

            Vessels Act  apply when a plaintiff  brings a "public-vessel-

            related  suit  in  admiralty  against  the  United   States."

            Justice v. United States, 6 F.3d 1474, 1475 (11th Cir. 1993).
            _______    _____________

            Causes  of action under both Acts "may be brought only within

            two  years after the  cause of action  arises."   46 U.S.C.  

            745.  A cause of action  "arises" under both Acts on the date

            of injury.  See, e.g., McMahon v. United States, 342 U.S. 25,
                        ___  ____  ________________________

            27 (1951) ("[W]e think it  clear that the proper construction

            of the  language used in the  Suits in Admiralty  Act is that

            the period of  limitation is to be computed from  the date of

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                                          5

the  injury.");  Justice, 6  F.3d at  1475 (stating  that the
                             _______

            Public Vessels Act incorporates the statute of limitations of

            the Suits in Admiralty Act).3

                      There is  no dispute  that  the original  complaint

            against  GEGS was timely filed,  nor can it  be disputed that

            the  amended complaint  which  named the  United States  as a

            party was first  filed more than two years  after the date of

            injury.   Wilson  offers two  grounds  for arguing  that  the

            amended complaint  should  nonetheless be  viewed as  timely.

            First, Wilson argues that the two-year statute of limitations

            should be  equitably  tolled.   Second,  he argues  that  the

            amended complaint  should be deemed  to "relate back"  to the

            date of filing of  the original complaint under Fed.  R. Civ.

            P. 15(c).  We address these arguments in turn.

            A.  Equitable Tolling
            _____________________

                      Federal  courts have allowed equitable tolling only

            sparingly.  Irwin  v. Veterans  Admin., 111 S.  Ct. 453,  457
                        _____     ________________

____________________

            3.  The  Public Vessels  Act incorporates  provisions of  the
            Suits  in  Admiralty  Act,  "insofar  as  the  same  are  not
            inconsistent"  with the Public Vessels Act.  46 U.S.C.   782.
            This  includes the  two-year  statute of  limitations.   See,
                                                                     ___
            e.g., Justice, 6  F.3d at 1475; Favorite v.  Marine Personnel
            ____  _______                   ________     ________________
            and  Provisioning, Inc., 955 F.2d  382, 385, 388-89 (5th Cir.
            _______________________
            1992) (applying Suits in Admiralty Act's two-year  limitation
            in  case involving claims  under both the  Public Vessels Act
            and Suits in Admiralty Act).  Wilson's brief alludes  vaguely
            to the notion that the two-year statute of limitations in the
            Public Vessels  Act operates in  a manner different  from the
            statute of limitations  in the  Suits in Admiralty  Act.   We
            have found  no  support  for  this argument,  either  in  the
            statutes  themselves  or  in  the  cases  interpreting  these
            statutes.

                                         -6-
                                          6

(1990).  For example, such tolling has been allowed where the

            claimant actively pursued a timely yet defective pleading, or

            where  the   complainant  was  tricked   by  his  adversary's

            misconduct into allowing a deadline to pass.  See id. at 457-
                                                          ___ ___

            58 nn.  4 & 5 (compiling  cases).  Where, on  the other hand,

            "`the  claimant   [fails]  to   exercise  due   diligence  in

            preserving his[/her]  legal rights,' courts are  reluctant to

            apply  principles of  equitable tolling  to extend  a federal

            limitations period."   De Casenave v. United States, 991 F.2d
                                   ___________    _____________

            11, 13 (1st Cir. 1993) (quoting Irwin, 111 S. Ct. at 458).
                                            _____

                      In  this case,  Wilson's failure  at more  than one

            juncture  to  exercise  due  diligence proves  fatal  to  his

            request for equitable tolling.  First, Wilson asks us to toll

            the statute of limitations because he purportedly was unaware

            at the time he filed suit that the United States, rather than

            GEGS, owned the SEPTAR on which  he was injured.  He  further

            states that  GEGS's  delay in  filing  a motion  for  summary

            judgment on  these grounds caused undue  delay in determining

            the ownership of the SEPTAR, which in turn warrants equitable

            tolling. 

                      The magistrate's  report points out,  however, that

            the ownership of the SEPTAR easily could and should have been

            determined  through  routine  discovery.    Wilson offers  no

            evidence to the contrary.  Nor does he allege any trickery or

            other  questionable motive  on the  part of  GEGS.   In fact,

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                                          7

there is no evidence in the record tending to  show that GEGS

            was dilatory in  alerting the district court that  the United

            States  owned the  SEPTAR.   Similarly,  there  is no  record

            evidence showing  that Wilson  made any attempt  to ascertain

            who owned the SEPTAR,  nor is there any evidence  that Wilson

            pursued discovery on this,  or any other issue in  this case.

            In sum,  nothing in  the record controverts  the magistrate's

            finding that  the  issue of  ownership could  have been  made

            known through  routine discovery procedures.  Thus, we see no

            reason  to  toll  the statute  of  limitations  based on  the

            actions  of  GEGS  in this  case.    Cf.  Favorite v.  Marine
                                                 ___  ________     ______

            Personnel and Provisioning, Inc., 955 F.2d 382, 388 (5th Cir.
            ________________________________

            1992)  (declining  to  equitably  toll  two-year  statute  of

            limitations under the  Suits in Admiralty Act  and the Public

            Vessels  Act  where  plaintiff  "waited to  bring  suit  only

            because he believed he could sue . . . his private employer[]

            under  the three-year  statute  of limitations  in the  Jones

            Act").

                      More  important  than Wilson's  initial  failure to

            ascertain the identity of the SEPTAR's owner, however, is the

            fact that Wilson  did learn  of the actual  ownership of  the
                              ___

            SEPTAR  more   than  five   months  before  the   statute  of

            limitations  expired, i.e.,  when GEGS  filed its  motion for

            summary judgment.  Still, Wilson did not amend his complaint.

            In fact, Wilson  filed the amended  complaint only after  the
                                                               _____

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                                          8

district court threatened  to dismiss  the case  for lack  of

            prosecution.   Wilson  offers no  reason  or excuse  for this

            delay.    We  see  no basis  for  extending  the  exceptional

            doctrine  of  equitable  tolling  to  a  party  who,  by  all

            accounts, merely failed  to exercise his rights.   Cf. Puleio
                                                               ___ ______

            v.  Vose, 830  F.2d  1197, 1203  (1st  Cir. 1987)  ("The  law
                ____

            ministers to  the  vigilant,  not to  those  who  sleep  upon

            perceptible rights."), cert. denied, 485 U.S. 990 (1988).  In
                                   _____ ______

            sum, the  record before  us reflects  that  Wilson failed  to

            exercise due diligence in pursuing his claim, and thus we see

            no grounds for applying the doctrine of equitable tolling.

            B. "Relation Back" Under Fed. R. Civ. P. 15(c)
            ______________________________________________

                      Wilson's claim under Fed. R. Civ. P. 15(c) fares no

            better.    When  a plaintiff  amends  a  complaint  to add  a

            defendant,  but  the  plaintiff  does so  subsequent  to  the
                                                      __________

            running  of the  relevant statute  of limitations,  then Rule

            15(c)(3) controls  whether the amended  complaint may "relate

            back"  to the  filing of  the original complaint  and thereby

            escape a timeliness objection.4 

____________________

            4.  Rule 15(c) states:

                      An Amendment  of a pleading  relates back
                      to the date of the original pleading when
                        (1) relation back  is permitted by  the
                      law   that   provides   the  statute   of
                      limitations applicable to the action, or
                        (2)  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

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                                          9

We begin by noting  that Wilson failed to  meet one

            of Rule  15(c)(3)'s  mechanical requirements,  namely,  that,

            within 120  days of  the filing  of the  original complaint,5

____________________

                      original pleading, or
                        (3) the amendment  changes the party or
                      the naming of  the party  against whom  a
                      claim  is  asserted   if  the   foregoing
                      provision  (2)  is satisfied  and, within
                      the  period  provided  by  Rule  4(m) 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.

                      The delivery or mailing of process to the
                      United States Attorney, or  United States
                      Attorney's  designee,   or  the  Attorney
                      General  of  the  United  States,  or  an
                      agency or  officer who would have  been a
                      proper defendant if named,  satisfies the
                      requirement of subparagraphs (A)  and (B)
                      of this paragraph (3) with respect to the
                      United  States or  any agency  or officer
                      thereof to be brought  into the action as
                      a defendant.

            5.  Fed. R. Civ. P. 4(m), cited in Rule 15(c), states:

                      If service  of the summons  and complaint
                      is  not made upon  a defendant within 120
                      days after the  filing of the  complaint,
                      the  court, upon  motion  or on  its  own
                      initiative after notice to the plaintiff,
                      shall   dismiss    the   action   without
                      prejudice as to  that defendant or direct
                      that   service   be  effected   within  a
                      specified  time;  provided  that  if  the
                      plaintiff  shows  good   cause  for   the
                      failure, the court shall extend  the time
                      for  service  for an  appropriate period.

                                         -10-
                                          10

"the party to be brought in by amendment . .  . received such

            notice of the institution  of the action that the  party will
            ______ __ ___ ___________  __ ___ ______

            not be  prejudiced in maintaining  a defense on  the merits."

            (Emphasis supplied).  The record shows that the United States

            received notice of  this action no earlier  than November 16,

            1990, the date that it was served with the amended complaint.

                      In arguing  that the United States  nonetheless had

            adequate notice of the claim against GEGS, Wilson points only

            to   his  counsel's  requests   for  radio   transcripts  and

            investigation results from the Navy.  These requests occurred

            some nine  months  prior to  the  institution of  the  action
                               _____

            against GEGS.  Moreover,  the correspondence does not advert,

            formally  or informally,  to  the institution  of any  action
                                              ___________

            against the United  States or any other  party.  Accordingly,

            we find no  means in the  record to conclude that  the United

            States ever received  timely notice of the institution of the

            suit  against  GEGS.     Without  this  timely  notice,  Rule

            15(c)(3)'s relation back provisions cannot apply.6

____________________

                      This  subdivision  does   not  apply   to
                      service in a  foreign country pursuant to
                      subdivision (f) or (j)(1).

            6.  In  addition,  Wilson  cites  the  "identity-of-interest"
            gloss on Rule 15(c) which we endorsed in Hernandez Jimenez v.
                                                     _________________
            Calero  Toledo,  604 F.2d  99, 102-03  (1st  Cir. 1979).   We
            ______________
            stated there  that "the institution  of the action  serves as
            constructive notice of the action  to the parties added after
            the limitations  period expired, when the  original and added
            parties  are   so  closely  related  in   business  or  other
                           __  _______  _______  __   ________  __  _____
            activities that  it  is fair  to  presume the  added  parties
            __________
            learned of the institution of the action shortly after it was

                                         -11-
                                          11

An additional requirement  for relation back  under

            Rule  15(c)(3) is  that the  party to  be added  by amendment

            "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."   There is no basis  for imputing

            such  knowledge to the United States on the record before us.

Finally,   the   Seventh   Circuit   has   recently

            reiterated that 

                      "amendment [of a complaint] with relation
                      back is  generally permitted in  order to
                      correct  a misnomer of  a defendant where
                      the  proper  defendant is  already before
                      the  court and  the effect  is  merely to
                      correct the name under which he  is sued.
                      But  a new  defendant cannot  normally be
                      substituted or added  by amendment  after
                      the statute of limitations has run."  

            Worthington  v. Wilson,  8  F.3d 1253,  1256 (7th  Cir. 1993)
            ___________     ______

            (quoting Wood  v. Woracheck,  618 F.2d  1225, 1229 (7th  Cir.
                     ____     _________

            1980)).    Put  another   way,  Rule  15(c)(3)  "`permits  an

            amendment to relate back  only where there has been  an error

            made concerning the  identity of the  proper party and  where

            that party is  chargeable with knowledge of the  mistake, but

____________________

            commenced."   Id.    To support his argument  that the United
                          ___
            States  had such  constructive  notice in  this case,  Wilson
            cites  only  the contract  between  the Navy  and  GEGS which
            governed the  operation of the  SEPTARs.  Without  more, this
            contract does not permit a  conclusion that the United States
            and  GEGS were so closely related in business that the United
            States  can be presumed to  have received notice  of the case
            against GEGS, nor does any other record evidence support such
            a conclusion.   

                                         -12-
                                          12

it  does not permit relation back  where, as here, there is a
                                                               _____ __ _

            lack  of knowledge of the proper party.'"  Id. (quoting Wood,
            ____  __ _________ __ ___ ______ _____     ___          ____

            618 F.2d at 1230) (emphasis supplied).

                      In this case, there  was no "mistake concerning the

            identity of the proper party,"  as required by Rule 15(c)(3).

            Rather, Wilson  merely lacked knowledge of  the proper party.

            In other words, Wilson fully intended to sue GEGS, he did so,

            and GEGS  turned out to be the wrong party.  We have no doubt

            that Rule 15(c) is not designed to remedy such mistakes.

                      To the extent that  Wilson raises any other issues,

            he  does so  in  a perfunctory  manner,  with no  attempt  at

            developed argumentation.   Such issues may  be deemed waived.

            See Romero  Lama v. Borras, 16  F.3d 473, 481  n.12 (1st Cir.
            ___ ____________    ______

            1994).

                                         III.
                                         III.
                                         ____

                                      CONCLUSION
                                      CONCLUSION
                                      __________

                      For  the  foregoing  reasons,  the  order  of   the

            district  court dismissing Wilson's claims against the United

            States is

                      Affirmed.  Costs to appellees.
                      _________  ___________________

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