United States Court of Appeals
For the First Circuit
No. 00-1357
AARON NETT, by and through his mother
and next best friend, ROBIN NETT,
and ROBIN NETT and JAMES NETT, Individually,
Plaintiffs, Appellants,
v.
MITCHELL J. BELLUCCI, M.D.;
PETER D. GROSS, M.D.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Lynch, Circuit Judge,
Bownes,* Senior Circuit Judge,
and Lipez, Circuit Judge.
Kenneth M. Levine, with whom Annenberg & Levine was on
brief, for appellants.
Michael J. Racette, with whom Bruce R. Henry, and
Morrison, Mahoney & Miller, LLP. were on brief, for appellee.
September 30, 2002
* Judge Bownes heard oral argument in this matter, and
participated in the semble, but he did not participate in the
drafting or the issuance of the panel's earlier opinion in this
case. The remaining two panelists therefore issued that opinion
pursuant to 28 U.S.C. §46(d). This per curiam opinion is issued
on the same basis.
PER CURIAM. This appeal arose from a medical malpractice
lawsuit alleging negligent prenatal care and injuries sustained by
Aaron Nett during his delivery on April 2, 1992. The Netts filed
suit against the obstetrician, Mitchell Bellucci, M.D., on April
30, 1996. When the Netts discovered that the problems during
delivery may have stemmed in part from an allegedly erroneous
reading of an ultrasound by radiologist Peter Gross, M.D. on March
26, 1992, they filed a motion for leave to amend their complaint to
include him as a defendant on March 10, 1999. In filing their
motion to amend, the Netts failed to comply with Massachusetts
District Court Local Rule 15.1(b), which requires the service of
"the motion to amend upon the proposed new party at least ten (10)
days in advance of filing the motion." Local Rule 15.1(b). Despite
this failure, the clerk of court accepted their initial filing on
March 10, 1999. However, after discovering their omission, the
Netts, of their own accord, served Dr. Gross with the motion for
leave to amend their complaint, as well as a motion to extend time,
on March 19, 1999. In compliance with the local rule, these
motions were then refiled with the court on March 29, 1999. The
Netts filed their amended complaint on April 26, 1999.
On March 26, 1999, after the initial filing of the motion
to amend but before the second filing of the motion to amend and
the filing of the amended complaint, the time during which the
Netts could commence an action against Dr. Gross under
Massachusetts' seven-year statutes of repose expired. The district
court dismissed their claim against Dr. Gross on that basis.
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In considering the appeal filed by the Netts from the
decision by the district court, we concluded that it was unclear
under Massachusetts law whether the filing of a motion for leave to
amend constitutes the commencement of the action for the purpose of
the statute of repose, or, as the district court held, the amended
complaint itself must be filed within the statutory period. See
Nett v. Bellucci, 269 F.3d 1 (1st Cir. 2001). Therefore, we
certified two questions to the Supreme Judicial Court of
Massachusetts: (1) Is the operative date for commencement of an
action for purposes of the Massachusetts statutes of repose the
date of filing of a motion and supporting memorandum for leave to
amend a complaint to add a party (assuming timely service), or is
the operative date the date the amended complaint is filed after
leave of court is granted, when leave of court is required by the
Rules of Civil Procedure to file an amended complaint? (2) If the
answer to Question No. 1 is that the operative date is the date of
filing of the motion for leave to amend, do the policies underlying
the statutes of repose require that such filings be in compliance
with the local rules of court applicable to the filing of such
motions, or do those policies permit the court in its discretion to
excuse non-compliance with the local rules?
In an opinion filed on September 4, 2002, the
Massachusetts Supreme Judicial Court answered the certified
questions as follows:
(1) The operative date for commencement of an action for
purposes of a statute of repose is the date of filing of
a motion for leave to amend a complaint to add a party;
and (2) the policies underlying the statute of repose do
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not require that the motion for leave to amend comply
with the local rules, as long as the motion itself is
accepted for filing within the period provided by the
statute of repose. Nett v. Bellucci, 437 Mass. 630, 630-
31 (2002).
In accordance with these answers, we vacate the decision of the
district court and remand for further proceedings consistent with
the decision of the Supreme Judicial Court.
So ordered.
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