Edwards v. First American

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[NOT FOR PUBLICATION]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

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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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