United States Court of Appeals
For the First Circuit
No. 92-2102
MIGUEL DE CASENAVE AND
MARIA ANGELICA MORALES DE CASENAVE,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
Before
Stahl, Circuit Judge,
Aldrich and Coffin, Senior Circuit Judges.
Eduardo E. Betancourt with whom Hernandez Sanchez Law Firm was on
brief for appellants.
James G. Touhey, Jr., Trial Attorney, with whom Stuart M. Gerson,
Assistant Attorney General, Daniel F. Lopez Romo, United States
Attorney, and Jeffrey Axelrad, Director, Torts Branch, were on brief
for appellee.
April 20, 1993
STAHL, Circuit Judge. In this appeal, plaintiffs
Miguel de Casenave and his wife, Maria A. Morales de
Casenave, challenge the district court's dismissal of their
complaint as time-barred. We affirm the judgment of the
district court, although on different grounds.
I.
Procedural Background
On March 24, 1989, plaintiff Miguel de Casenave
allegedly sustained personal injuries when he tripped and
fell while on the premises of the Roosevelt Roads United
States Naval Station, in Ceiba, Puerto Rico. On April 27,
1989, Mr. de Casenave and his wife, plaintiff Maria de
Casenave, presented tort claims to the United States
government based on this incident. The government denied
their claims on March 26, 1990, and mailed them the notice of
denial two days later. On August 14, 1990, plaintiffs
commenced an action in federal court against the government
under the Federal Torts Claims Act ("FTCA"), 28 U.S.C.
1346(b), 2671, et seq., alleging that the government's
negligent maintenance of a sidewalk at the Naval Station
caused his injuries. During the pendency of that action,
plaintiffs' counsel failed to comply with an order of the
district court (Pieras, J.) directing him to attend an
initial scheduling conference and to file certain scheduling
memoranda. As a result, Judge Pieras found plaintiffs'
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counsel in violation of Federal Rules of Civil Procedure
16(f) and 37(b)(2), and, in an order dated January 18, 1991,
dismissed the complaint. See de Casenave v. United States,
No. 90-2095(JP), slip op. at 5 (D.P.R. January 18, 1991).
The judgment of dismissal was entered on January 23, 1991.1
On March 4, 1991, Judge Pieras denied plaintiffs' motion for
reconsideration of that dismissal, and on April 3, 1991,
plaintiffs filed a notice of appeal. Subsequently, however,
plaintiffs moved for a voluntary dismissal of their appeal,
which this court entered on May 28, 1991.
On July 10, 1991, plaintiff filed a new complaint
against the government which contained verbatim the same
allegations as the first complaint. In response, the
government filed a motion to dismiss, arguing that the six-
month statute of limitations on plaintiffs' FTCA claim had
run. The district court (Cerezo, J.) agreed and dismissed
1. In his January 18 order, Judge Pieras stated that the
dismissal was "with prejudice." The judgment of dismissal,
however, stated that the dismissal was "without prejudice."
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the complaint.2 See de Casenave v. United States, 797 F.
Supp. 86, 87 (D.P.R. 1992). This appeal followed.
II.
Discussion
A FTCA claimant has six months from the date the
federal agency mails the notice of final denial of her/his
claim to file suit in federal court. See 28 U.S.C.
2401(b).3 Here, the government mailed plaintiffs the notice
of final denial of their claim on March 28, 1990. Plaintiffs
filed their new lawsuit more than one year after the notice
of denial was mailed. Thus, the instant complaint was filed
well outside the six-month limitations period. Plaintiffs
2. The district court held that, because the six-month
statute of limitations was jurisdictional, it had no power to
apply principles of equitable tolling to plaintiffs' claim.
In light of the Supreme Court's holding in Irwin v. Veterans
Admin., 498 U.S. 89, , 111 S. Ct. 453, 457-58 (1990),
discussed infra, the district court's refusal to entertain
plaintiffs' tolling argument was erroneous. On appeal,
however, we are "free to affirm a district court's decision
on any ground supported in the record even if the issue was
not pleaded, tried or otherwise referred to in the
proceedings below." Resare v. Raytheon Co., 981 F.2d 32, 44-
45 n.30 (1st Cir. 1992) (quoting Chamberlin v. 101 Realty,
Inc., 915 F.2d 777, 783 n.8 (1st Cir. 1990)).
3. 28 U.S.C. 2401(b) provides:
A tort claim against the United States
shall be forever barred unless it is
presented in writing to the appropriate
Federal agency within two years after
such claim accrues or unless action is
begun within six months after the date of
mailing, by certified or registered mail,
of notice of final denial of the claim by
the agency to which it was presented.
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argue, however, that the six-month limitations period should
have been tolled during the pendency of the first lawsuit.
We do not agree.4
In cases "where the claimant [fails] to exercise
due diligence in preserving his[/her] legal rights," Irwin,
498 U.S. at , 111 S. Ct. at 458, courts are reluctant to
apply principles of equitable tolling to extend a federal
limitations period. See id. at , 111 S. Ct. at 457-58
("Federal courts have typically extended equitable relief
only sparingly. We have allowed equitable tolling in
situations where the claimant has actively pursued his
judicial remedies by filing a defective pleading during the
statutory period, or where the complainant has been induced
or tricked by his adversary's misconduct into allowing the
filing deadline to pass.") (footnotes omitted); Pipkin v.
United States, 951 F.2d 272, 274 (10th Cir. 1991) (refusing
to toll FTCA six-month limitations period during filing of
previous FTCA lawsuit which was dismissed without prejudice
for failure to prosecute).
Plaintiffs' initial lawsuit was dismissed due to
their counsel's refusal to abide by the discovery orders of
4. Because the facts upon which plaintiffs' tolling argument
rests are undisputed, we see no reason to remand this case to
the district court. See, e.g., Societe Des Produits Nestle,
S.A. v. Casa Helvetia, Inc., 982 F.2d 633, 642 (1st Cir.
1992) (using findings of fact made in the framework of an
unacceptable legal analysis to affirm on a different legal
theory).
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the district court. The record contains no evidence that
plaintiffs were induced or tricked by any misconduct on the
part of the government to delay as long as they did in filing
this lawsuit.5 Rather, this case is a classic example of a
party "[fail]ing to exercise due diligence in preserving
his[/her] legal rights." Irwin, 498 U.S. at , 111 S. Ct.
at 458. Thus, we discern no basis under which the district
court could have applied equitable principles to rescue
plaintiffs' complaint. Cf. Pipkin, 951 F.2d at 275 (refusing
to toll FTCA six-month limitations period during pendency of
previously filed lawsuit).
Even if the district court had decided to toll the
six-month limitations period between the time plaintiffs
filed the first lawsuit and the time that action was
dismissed, plaintiffs' instant complaint would still be time-
barred.6 Plaintiffs waited four months and sixteen days to
5. At oral argument, plaintiffs appeared to be asserting
some sort of estoppel theory based on an alleged discussion
with counsel for the government during the pendency of the
previous appeal. This theory, however, was neither
articulated below nor developed in plaintiffs' brief on
appeal. As such, we need not address it. See, e.g., Lafont-
Rivera v. Soler-Zapata, 984 F.2d 1, 3 n.2 (1st Cir. 1993)
(refusing to address issue which appellant failed to
articulate below); Rodriguez-Pinto v. Tirado-Delgado, 982
F.2d 34, 41 (1st Cir. 1993) (deeming issue adverted to in a
"perfunctory manner" on appeal waived).
6. Plaintiffs cannot successfully argue that the tolling
period should extend through the time that plaintiff filed an
unsuccessful motion for reconsideration of the dismissal. We
have previously rejected that same argument in a similar
context. Hilton Int'l Co. v. Union de Trabajadores de La
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file their first lawsuit. After the dismissal of that
lawsuit, plaintiffs waited in excess of five months to refile
their complaint. Thus, even giving them the benefit of
tolling, plaintiffs waited more than nine months before
bringing suit.7 We therefore affirm, albeit on different
grounds, the district court's decision to dismiss plaintiffs'
complaint.
Affirmed.
Industria Gastronomica, 833 F.2d 10, 11 (1st Cir. 1987)
(holding that plaintiff's filing of a motion for
reconsideration of a dismissal of a previously filed
complaint does not toll limitations period in subsequent
action).
7. The question of whether the court's dismissal was with or
without prejudice is therefore irrelevant.
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