Wilson v. United States Government

United States Court of Appeals
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.

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.

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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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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."

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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.

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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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.

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(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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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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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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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.

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"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

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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.

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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.

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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