UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-2370
LUIS CARRERAS-ROSA AND FRANCISCO SOLER-ROSA,
Plaintiffs, Appellants,
v.
MELVIN ALVES-CRUZ, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Antonio Bauza-Torres on brief for appellants.
Carlos Lugo-Fiol, Solicitor General, Edda Serrano-Blasini, Deputy
Solicitor General, and Edgardo Rodriguez-Quilichini, Assistant
Solicitor General, Department of Justice, on brief for appellee Melvin
Alves-Cruz.
October 9, 1997
Per Curiam. This appeal concerns the judgment
dismissing a 42 U.S.C. 1983 complaint as untimely under the
applicable Puerto Rico statute of limitations. We write to
clarify that, applying Puerto Rico law, the day plaintiffs'
action accrued should not be counted as the first day of the
limitations period and that the limitations period begins to
run on the following day. The prior decisions of this court
and the district court for Puerto Rico may have been somewhat
inconsistent on that point. Therefore we take this
opportunity to resolve any uncertainty.
I. Background
I. Background
Plaintiffs' brother was shot and killed by the
defendants, policemen in Puerto Rico on May 19, 1994.
Plaintiffs learned of the death on May 20, 1994. They filed
their 1983 complaint on May 22, 1995.
Defendants moved to dismiss based on the applicable one-
year statute of limitations, Article 1868(2) of the Civil
Code, P.R. Laws Ann. tit. 31, 5298(2). Plaintiffs
responded that they did not know of their cause of action
until they received an autopsy report in early May 1995. The
district court rejected plaintiffs' analysis and determined
that the action accrued on May 20, 1994. The district court
further concluded that the complaint filed on May 22, 1995,
was two days too late and so entered judgment dismissing the
complaint.
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Plaintiffs moved to vacate the judgment of dismissal,
arguing that the day of accrual, May 20, 1994, should not be
counted, so that the 365-day limitations period ran from May
21, 1994, until Saturday, May 20, 1995. They further argued
that their complaint was timely filed on Monday, May 22,
1995, the next court day. The district court summarily
denied that motion.
This appeal followed. The parties' briefs did not
adequately address the question whether the day of accrual
should be counted as the first day of the limitations period,
and so supplemental briefs were ordered. Now that the issue
has been fully briefed, and as the facts are fully laid out
upon the record, we are prepared to decide the appeal without
further argument. See 1st Cir. Loc. R. 34.1(a)(2)(iii).
II. Discussion
II. Discussion
The limitation period for filing this 1983 claim is
governed by the applicable state statute of limitations for
personal injury actions. See Wilson v. Garcia, 471 U.S. 261,
278-80 (1985). In Puerto Rico the applicable limitation
period for tort actions is one year. Article 1868(2) of the
Civil Code, P.R. Laws Ann. tit. 31, 5298(2); Torres v.
Superintendent of Police, 893 F.2d 404, 406 (1st Cir. 1990).
One year means 365 days, or 366 days in leap year. Olivo
Ayala v. Lopez Feliciano, 729 F.Supp. 9, 10 (D.P.R. 1990);
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Yeinsip v. Lufthansa German Airlines, 725 F.Supp. 113, 115
(D.P.R. 1989).
Although the limitations period is determined by state
law, the date of accrual is a federal law question. The
accrual period for a 1983 action "ordinarily starts when
the plaintiff knows, or has reason to know, of the injury on
which the action is based." Rivera-Muriente v. Agosto-
Alicea, 959 F.2d 349, 353 (1st Cir. 1992). In this
particular case, it is clear that the date of accrual is May
20, 1994, the date on which plaintiffs learned of their
brother's death.
The question that concerns us here is whether the
limitations period begins on the date of accrual or the
following day. In this 1983 case brought in Puerto Rico,
Puerto Rico law governs the limitations period, including the
"closely related questions of . . . application." See
Wilson, 471 U.S. at 269. Thus, when the federal court
borrows the state statute of limitations, so too the date on
which the limitations period starts to run should be
determined by the state law defining the "application" of the
limitations period. Accordingly, we determine the question
under Puerto Rico law.1
1
1To the extent that Puerto Rico law provides that the day
1
that an action accrues is not counted as the first day of the
limitations period, it is consistent with Fed. R. Civ. R.
6(a), which provides:
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The prior opinions of the Puerto Rico district court and
this court may have been somewhat inconsistent in determining
the first day of the limitations period. The inconsistencies
appear to stem from differing applications of two provisions
of Puerto Rico law and a Puerto Rico court rule. Article 388
of the Political Code, P.R. Laws Ann. tit. 1, 72, provides:
The time in which any act provided by law
is to be done is computed by excluding
the first day, and including the last,
unless the last day is a holiday, and
then it is also excluded.
Similarly, as relevant here, Rule 68.1 provides:
In computing any period of time
prescribed or allowed by these rules, by
order of the court, or by any applicable
statute, the day of the act, event or
default from which the designated period
of time begins to run shall not be
included. . . .
In contrast, Article 1869 of the Civil Code, P.R. Laws Ann.
tit. 31, 5299, provides:
The time for the prescription of all
kinds of actions, when there is no
special provision to the contrary, shall
be counted from the day on which they
could have been instituted.
In computing any period of time
prescribed or allowed by . . . any
applicable statute, the day of the act,
event or default from which the
designated period of time begins to run
shall not be included.
Therefore, the result here would be the same whether federal
law or Puerto Rico law were applied.
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In some federal cases, with which we now disagree,
Article 1869 was thought to prevail, so that the limitations
period was held to include the first day that the action
could have been instituted. See Ramirez Morales v. Rosa
Viera, 632 F.Supp. 491, 492 (D.P.R. 1986), aff'd, 815 F.2d 2,
4-5 (1st Cir. 1987); Olivo Ayala, 729 F.Supp. at 10; Dennis
v. Figueroa, 642 F.Supp. 959, 961 (D.P.R. 1986); de la Cruz
LaChapel v. Chevere Ortiz, 637 F.Supp. 43, 44 (D.P.R. 1986);
see also Altair Corp. v. Pesquera de Busquets, 769 F.2d 30,
33 (1st Cir. 1985). And in dicta this court has equated the
date of accrual with the first day of the limitations period:
"[The] date of accrual, i.e., the day on which the
limitations clock begins to tick, is determined by reference
to federal law." Muniz-Cabrero v. Ruiz, 23 F.3d 607, 610
(1st Cir. 1994) (precise dates were not dispositive in that
case).
However, in other cases, with which we now agree,
Article 388 prevailed, so that the limitations period began
on the day following the date of accrual. See Salamanca v.
American Airlines, Inc., 920 F.Supp. 24, 26 (D.P.R. 1996);
Conde v. Beltran Pena, 793 F.Supp. 33, 35-36 (D.P.R. 1992);
Yeinsip, 725 F.Supp. at 115; see also Silva-Wiscovich v.
Weber Dental Manufacturing Co., 835 F.2d 409, 409 (1st Cir.
1987).
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We now conclude that the method of computing the
limitations period followed in Salamanca, Conde, and Yeinsip
applies in this 1983 action filed in the district court for
Puerto Rico:
the day in which a tort cause of action
arises counts in the sense that it
provides the starting point for the
computation of the prescriptive term; it
is not, however, counted within that
term.
Salamanca, 920 F.Supp. at 26.
We reach this conclusion because, as the district court
in Salamanca noted, the Puerto Rico Supreme Court has held
that Article 388 (not counting the first day) applies to the
statute of limitations for tort actions, which statute also
prescribes this 1983 action. E.g., Comunidad Agricola
Bianchi v. Superior Court, 99 P.R.Dec. 366, 368 (1970); Ortiz
v. American Railroad Co., 62 P.R.Dec. 171, 176-77 (1943);
Cintron v. Insular Industrial & Agricultural Exposition
Ass'n, 58 P.R.Dec. 821, 828 (1941); see also Escalera v.
Andino, 76 P.R.Dec. 251, 254 (1954). As the district court
in Yeinsip explained, Article 1869 "is a suppletory
[provision], to be applied only if no special law over the
matter has been adopted," and Article 388 "is a specific
statute which regulates the computation of legal periods of
time," so that Article 388 controls. 725 F.Supp. at 115.
Here, applying the correct rule to compute the
prescriptive period, plaintiffs' action accrued on May 20,
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1994, but the statute of limitations did not begin to run
until the next day, May 21, 1994. The applicable 365-day
period would have expired on Saturday, May 20, 1995, but,
excluding the weekend days, the limitations period extended
to the following Monday. It follows that plaintiffs'
complaint was timely filed on Monday, May 22, 1995.
Accordingly, we vacate the judgment of the district
court dismissing the complaint and remand for further
proceedings.
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