United States Court of Appeals
For the First Circuit
Nos. 09-1489, 09-1791
WILLIAM COONS,
Plaintiff, Appellant,
v.
INDUSTRIAL KNIFE COMPANY, INC.,
Third-Party Defendant/Fourth-Party Plaintiff, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Marianne B. Bowler, U.S. Magistrate Judge]
Before
Torruella, Lipez and Howard, Circuit Judges.
Michael T. Eskey, with whom DeLuca & Weizenbaum Ltd. was on
brief, for appellant.
Todd B. Gordon, with whom Stephen F. Gordon and The Gordon Law
Firm LLP were on brief, for Industrial Knife Company.
September 10, 2010
LIPEZ, Circuit Judge. William Coons appeals from the
district court's order under Federal Rule of Civil Procedure 59(e),
which reversed, on statute of limitations grounds, a $328,000
judgment in his favor against appellee Industrial Knife Company.
He also appeals from the district court's award of attorney's fees
and expenses to Industrial Knife in connection with his untimely
designation of expert witnesses. We affirm both the judgment for
Industrial Knife and the award of attorney's fees.
I.
Coons commenced this diversity action on September 29,
2003, exactly three years after he suffered a serious hand injury
while changing an industrial paper-cutting knife ("the C-700
knife") at his place of employment. He alleged in the complaint
that A.F. Chapman Corporation manufactured and distributed the
C-700 knife and was liable for his injuries under various state law
product liability theories. Over a year later, on October 18,
2004, A.F. Chapman requested leave to file a third-party claim for
contribution against Industrial Knife, citing "recent pre-trial
discovery" revealing that Industrial Knife was the actual
manufacturer and/or distributor of the C-700 knife. Leave was
granted, and Industrial Knife filed an answer on January 21, 2005,
denying that it manufactures knives but acknowledging that it might
have supplied or distributed the C-700 knife.
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Industrial Knife then filed its own third-party complaint
against another member of the knife supply chain, Heritage Knife
Company, which in turn filed cross-claims against the other
defendants. After the dust settled, Coons moved for leave to amend
his original complaint on May 5, 2005, to add claims against
Industrial Knife and Heritage Knife. The district court allowed
the unopposed request to amend, and Industrial Knife filed an
answer asserting the statute of limitations as one of its
affirmative defenses.
Nearly two years later, Industrial Knife and Heritage
Knife filed a joint "motion to dismiss" raising the statute of
limitations defense. The district court denied that motion as
untimely, noting that the deadline for filing dispositive pre-trial
motions had passed months earlier. The case against Industrial
Knife and Heritage Knife then went to trial before a jury.1 At the
close of Coons's case, the defendants moved for judgment as a
matter of law, invoking the statute of limitations. The district
court denied that motion without prejudice, remarking that the
motion could be "renewed after all the evidence. Then we can spend
as much time as we need." The motion was not renewed before the
jury retired to deliberate. The jury returned a verdict finding
1
A.F. Chapman was dismissed from the case by stipulation
of the parties. By the parties' consent, the trial was held before
a magistrate judge.
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Industrial Knife liable and Heritage Knife not liable, and awarding
Coons $350,000 in compensatory damages.
The district court entered judgment against Industrial
Knife in the amount of $328,247.08, which reflected an adjustment
for Coons's comparative negligence and the addition of pre-judgment
interest. Industrial Knife filed a motion under Federal Rule of
Civil Procedure 59(e) within the then-applicable ten-day time
limit, arguing that the judgment could not stand because Coons's
claims against Industrial Knife were time-barred. In response to
the motion, the district court issued a thoughtful and
comprehensive opinion in which it concluded that Industrial Knife's
statute of limitations defense was indeed meritorious. It
consequently reversed and entered judgment for Industrial Knife.
The district court also entered an order awarding Industrial Knife
$6,886 in attorney's fees and $1,358 in expenses as a sanction for
Coons's earlier untimely designation of expert witnesses. Coons
appeals from the judgment and the award.
II.
The principal question on appeal is whether the district
court erred in entering judgment for Industrial Knife based on the
statute of limitations, notwithstanding the jury's verdict for
Coons. Before we can reach that question, however, we must address
a threshold objection that Coons raises. He contends that
Industrial Knife waived the statute of limitations defense by
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failing to raise it through a timely pre-trial motion2 or a renewed
motion for judgment as a matter of law.
That argument is easily rejected as to the failure to
file a timely pre-trial motion. With one narrow exception not
applicable here, see Fed. R. Civ. P. 12(h)(1), a party does not
waive a properly pleaded defense by failing to raise it by motion
before trial. See McIntosh v. Antonino, 71 F.3d 29, 38 (1st Cir.
1995). Industrial Knife raised the limitations defense in its
answer; no more was needed to preserve the issue for trial.
Coons's argument that the limitations defense was waived
at trial because it was not raised in a renewed motion for judgment
as a matter of law is likewise off the mark. It is true that a
Rule 50(b) motion is the standard way to raise a limitations
defense that has been rejected by the jury. See, e.g., Pessotti
v. Eagle Mfg. Co., 946 F.2d 974, 976 (1st Cir. 1991). It is not
the only way to raise the issue, however. Rule 59(e), which was
the basis for Industrial Knife's post-verdict motion, authorizes
the correction of a "manifest error of law." Marie v. Allied Home
Mortgage Corp., 402 F.3d 1, 7 n.2 (1st Cir. 2005) (internal
citation and quotation marks omitted). As the Seventh Circuit has
pointed out, "the entry of a judgment against the party that was
entitled to judgment as a matter of law -- the predicate for
2
As noted, Industrial Knife and Heritage Knife filed a
motion to dismiss well after the deadline for filing dispositive
pre-trial motions had passed.
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granting a motion for judgment notwithstanding the verdict -- could
easily be thought a manifest error" that would justify amendment of
the judgment under Rule 59(e). Cosgrove v. Bartolotta, 150 F.3d
729, 732 (7th Cir. 1998).
In any event, the district court noted as an alternative
ground for its ruling that Industrial Knife's motion to alter or
amend the judgment could be construed as a renewed motion for
judgment as a matter of law because it was filed within the Rule
50(b) time limit3 and contained all of the information required for
a Rule 50(b) motion. The district court was correct. See
Cosgrove, 150 F.3d at 732 (holding under similar circumstances that
a motion styled as a Rule 59(e) motion could be treated as a Rule
50(b) motion). Indeed, viewing Industrial Knife's motion through
the lens of Rule 50(b) is more straightforward than taking the Rule
59(e) route, since it highlights the nature of the purported
"manifest error of law," i.e., that it was unreasonable, on the
evidence presented at trial, for the jury to reject the limitations
defense. Cf. Espada v. Lugo, 312 F.3d 1, 5 (1st Cir. 2002)
(propriety of judgment as a matter of law depends upon whether the
jury reasonably could have found that action was timely). For that
3
At the time of trial, a Rule 50(b) motion had to be filed
"[n]o later than 10 days after the entry of judgment," which was
the same as the period for filing a Rule 59(e) motion. See Fed. R.
Civ. P. 50(b) (2007); Fed. R. Civ. P. 59(e) (2007). The time
period was recently extended to twenty-eight days for both rules.
See Fed. R. Civ. P. 50(b) (2010); Fed. R. Civ. P. 59(e) (2010).
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reason, we will treat Industrial Knife's motion as a Rule 50(b)
motion. We emphasize, however, that the outcome is the same no
matter how the motion is viewed.
The grounds for Industrial Knife's limitations defense
are easily stated. Under Massachusetts law, Coons had to commence
his action within three years after his cause of action accrued,
which in this case was the date of his injury, September 29, 2000.
See Mass. Gen. Laws ch. 260, § 2A; Cannon v. Sears, Roebuck & Co.,
374 N.E.2d 582, 584 (Mass. 1978). He barely made it within that
period for his claims against A.F. Chapman, filing his original
complaint on September 29, 2003. However, he did not file the
amended complaint asserting claims against Industrial Knife until
May 2005, well outside the limitations period. The claims against
Industrial Knife are thus time-barred as a matter of law unless the
amended complaint "relates back" to the original complaint.4 See
Fed. R. Civ. P. 15(c).
When, as here, the plaintiff amends his complaint to add
a state law claim against a new party, Rule 15(c) provides two ways
in which the amended complaint can relate back to the original
4
"Under the doctrine of relation back, an amended
complaint can be treated, for purposes of the statute of
limitations, as having been filed on the date of the original
complaint." Pessotti, 946 F.2d at 975.
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complaint. Rule 15(c)(1)(C)5 sets out a federal relation back test
with three essential requirements:
First, the claim asserted against the
newly-designated defendant must satisfy the
terms of Rule 15(c)(1)(B), which provides that
the claim must arise out of the conduct,
transaction, or occurrence set out -- or
attempted to be set out -- in the original
pleading.
Second, within the period provided by [Federal
Rule of Civil Procedure] 4(m) for serving the
summons and complaint, the party to be brought
in by amendment must have received such notice
of the action that it will not be prejudiced
in defending on the merits.
Third, it must appear that within the same
time frame the newly-designated defendant
either knew or should have known that the
action would have been brought against it, but
for a mistake concerning the proper party's
identity.
Morel v. DaimlerChrysler AG, 565 F.3d 20, 26 (1st Cir. 2009)
(paragraph breaks added) (internal quotation marks and citations
omitted); see also Krupski v. Costa Crociere S.p.A., 130 S. Ct.
2485, 2493 (2010).
In addition to the federal test, Rule 15(c)(1)(A) allows
for relation back when "the law that provides the applicable
statute of limitations" -- in this case, Massachusetts law --
"allows relation back." Fed. R. Civ. P. 15(c)(1)(A). We have
described the choice between these two provisions as "a one-way
5
The subdivisions of Rule 15(c) were renumbered in 2007
but no substantive changes were made. References in this opinion
are to the current numbering scheme.
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ratchet," meaning that a party is entitled to invoke the more
permissive relation back rule, whether that is the state rule or
the federal rule set out in Rule 15(c)(1)(C). Morel, 565 F.3d at
26; see also 3 James Wm. Moore et al., Moore's Federal Practice
§ 15.19[1] (3d ed. & Supp. 2010) ("[I]f state law permits relation
back when the federal rules would not, the more forgiving state
rule controls.").
In its motion below, Industrial Knife set forth the
timeline of events and made the obvious point that Coons filed his
amended complaint more than three years after his cause of action
accrued. Industrial Knife also anticipated that Coons might make
a relation back counterargument. It contended that the amended
complaint did not relate back to the original complaint under the
federal test in Rule 15(c)(1)(C) because the notice requirement was
not met. That is, Industrial Knife claimed that it received no
notice of the action "within the period provided by Rule 4(m) for
serving the summons and complaint," Fed. R. Civ. P. 15(c)(1)(C),
which in this case was 120 days from the time the complaint was
filed, Fed. R. Civ. P. 4(m). Either by design or through
oversight, Industrial Knife did not discuss the possibility that
Coons's amended complaint might relate back to the original
complaint under Massachusetts law.
Coons, for his part, did not discuss Rule 15(c) in the
district court at all. In his opposition to Industrial Knife's
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motion, he staked out a categorical position grounded in Rule 14,
which governs third-party practice:
Plaintiff's motion to amend his complaint,
filed in May 2005, clearly stated that the
grounds upon which plaintiff sought to assert
direct claims against Industrial and Heritage
was based upon Rule 14(a). Rule 15, upon
which defendant repeatedly relies, including
the case law interpreting same, has absolutely
no bearing whatsoever on the fact that
plaintiff did not bring the defendants into
the case until May 2005.6
The district court carefully considered the parties'
arguments as they were presented. It first rejected Coons's Rule
14 argument, and rightly so. Rule 14(a)(3) delineates the
circumstances in which a plaintiff may assert claims against a
newly added third-party defendant, but it has nothing to say about
whether such third-party claims are timely. See D'Onofrio Constr.
Co. v. Recon Co., 255 F.2d 904, 910 (1st Cir. 1958) (noting that
"Rule 14 does not purport to deal with the statute of
limitations"); 6 Charles Alan Wright et al., Federal Practice &
Procedure § 1459 (3d ed. 2010) ("The fact that [a] third party has
been brought into the action does not revive any claims the
original plaintiff may have had against the third party that should
have been asserted earlier but have become unenforceable."). The
6
Coons also argued that Industrial Knife waived the
statute of limitations defense by not opposing his motion to amend
the complaint. As we have already said, the defense was properly
preserved by being asserted in Industrial Knife's answer.
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question of timeliness is governed by the applicable statute of
limitations, subject to the relation back doctrines of Rule 15(c).
The district court also agreed with Industrial Knife's
federal relation back analysis, finding that Industrial Knife
received no notice of the action within the time period prescribed
in the rule.7 We can find no fault with that decision.8 Coons has
pointed to nothing in the record to show that Industrial Knife
received notice of any sort within the required time period.
Indeed, Coons concedes on appeal that the state law test in Rule
15(c)(1)(A) is the "only provision" that can possibly save his
claims.
7
Rule 15(c)(1)(C) provides that the newly added party must
have received notice "within the period provided by Rule 4(m) for
serving the summons and complaint." Rule 4(m) provides:
If a defendant is not served within 120 days after the
complaint is filed, the court -- on motion or on its own
after notice to the plaintiff -- must dismiss the action
without prejudice against that defendant or order that
service be made within a specified time. But if the
plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate
period. This subdivision (m) does not apply to service
in a foreign country under Rule 4(f) or 4(j)(1).
8
We do note that several statements in the district
court's opinion might no longer reflect the law in light of the
Supreme Court's intervening decision in Krupski v. Costa Crociere
S.p.A., 130 S. Ct. 2485, 2493-96 (2010), which clarified the
"mistake concerning the proper party's identity" prong of the
federal relation back test. Because the notice issue disposes of
the federal relation back argument, it is unnecessary to consider
whether the district court's analysis of the "mistake concerning
the proper party's identity" prong was correct in light of the
Krupski decision.
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We therefore turn to Rule 15(c)(1)(A), which Coons urges
us to apply to his amended complaint. A substantial procedural
hurdle stands between Coons and that provision. The district court
expressly held that Coons forfeited the state law argument by
failing to raise it in his opposition to Industrial Knife's post-
judgment motion. That decision was well grounded in our precedent.
We have frequently emphasized that judges are not obligated to do
a party's work for him, "searching sua sponte for issues that may
be lurking in the penumbra of the motion papers." United States v.
Slade, 980 F.2d 27, 31 (1st Cir. 1992). This is particularly true
where, as here, the undeveloped argument raises complexities that
defy an easy answer.9 See Pessotti, 946 F.2d at 977-78, 980
(discussing some of the difficulties that arise when a federal
court is asked to apply Massachusetts relation back doctrines).
Under the circumstances, the district court was "free to disregard"
the state law argument that was not developed in Coons's brief
below, and that argument cannot now be "resurrected on appeal."
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 260 (1st
Cir. 1999).
Coons makes one final effort to save his forfeited state
law argument. He starts with the uncontroversial premise that it
was Industrial Knife's burden, as the moving party below, to show
9
The district court specifically noted this complexity as
a reason for not discussing the state law issue sua sponte.
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that it was entitled to judgment as a matter of law. Coons then
posits that Industrial Knife's burden obligated it to demonstrate
that Coons's claims did not relate back to the original complaint.
Therefore, the failure to discuss Rule 15(c)(1)(A) should be held
against Industrial Knife, not him.
The premise of Coons's argument is accurate enough. A
motion for judgment as a matter of law "must specify the judgment
sought and the law and facts that entitle the movant to the
judgment." Fed. R. Civ. P. 50(a)(2). But Industrial Knife
satisfied its burden of showing that it was entitled to judgment as
a matter of law by pointing out that, on the undisputed facts, the
claims against it were filed well outside the applicable three-year
limitations period. Although it is often good strategy for the
moving party to anticipate and respond to the strongest counter-
arguments that might be presented, as Industrial Knife did for the
federal relation back argument, there is no obligation to do so.
Once Industrial Knife "establishe[d] that the time period between
the plaintiff's injury and the plaintiff's complaint exceed[ed] the
limitations period set forth in the applicable statute," it was
Coons's burden to "alleg[e] facts which would take his . . . claim
outside the statute." McGuinness v. Cotter, 591 N.E.2d 659, 661-62
(Mass. 1992). Coons should have researched all the available
counter-arguments and presented them to the district court in the
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first place. The district court did not err in declining to do
Coons's work for him.
III.
The other issue on appeal is whether the district court
abused its discretion in awarding Industrial Knife $6,886 in
attorney's fees and $1,358 in expenses as a sanction for Coons's
untimely designation of expert witnesses. The district court wrote
a commendably thorough opinion explaining the award, and we have
nothing to add to its analysis. Suffice it to say that the
district court did not abuse its discretion, either in awarding
fees in the first place or in determining the amount of the award.
AFFIRMED.
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