Lopez-Gonzalez v. Comerio

United States Court of Appeals
For the First Circuit

No. 04-1633

LISANDRA LÓPEZ-GONZÁLEZ; JUSTINA RUÍZ-ROSA; LYDIA M. COLÓN-LÓPEZ;
MARIA A. CARRUCINI-REYES; MIRTHELINA RODRÍGUEZ-FERRER; AWILDA
RODRÍGUEZ-HERNÁNDEZ; ELBA D. RIVERA-CRUZ; MARTA E. RESTO-RIVERA;
EDNA L. HERNÁNDEZ-DEL-VALLE; CARMEN T. RIVERA-ROMÁN; JORGE A.
ROSADO-SANTIAGO,

Plaintiffs, Appellants,

v.

MUNICIPALITY OF COMERÍO; JOSÉ A. SANTIAGO-RIVERA, in his personal
and official capacity; JUAN L. FONTÁNEZ, in his personal and
official capacity; LUZ HAYDEE SANTOS, in her personal and
official capacity; ANTONIO SANTOS, in his personal and official
capacity,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, Senior U.S. District Judge]

Before

Lynch, Circuit Judge,
Campbell, Senior Circuit Judge,
and Howard, Circuit Judge.

Francisco R. Gonzalez for appellants.
Alicia M. Arana-Rivera, with whom Charlotten & Arana-Rivera,
P.S.C., and Jorge Martinez-Luciano, Civil Rights Legal Task Force,
Puerto Rico Department of Justice, were on brief for appellees.

April 21, 2005
 CAMPBELL, Senior Circuit Judge. Plaintiffs-Appellants

appeal from an order of the United States District Court for the

District of Puerto Rico dismissing as time-barred their § 1983

action. That action was a refiling of their prior identical action

that had been involuntarily dismissed without prejudice as a

sanction for plaintiffs' repeated failure to abide by the court's

orders to proceed with various types of discovery. Plaintiffs

insist that the dismissal of their action triggered the re-running

of Puerto Rico's one-year statute of limitations, allowing them up

to a year to refile the present action. The district court held

otherwise, ruling that as the dismissal was for plaintiffs'

disobedience of the court's orders to proceed, Puerto Rico's usual

"restart" tolling rule would inappropriately reward them and should

not be applied. We affirm the district court, ruling that even if,

under Puerto Rico law, Puerto Rico's restart tolling principle was

applicable, its use in this situation would violate federal policy

underlying 42 U.S.C. § 1983.

I. Background

On January 10, 2002, plaintiffs, terminated public

employees, filed an action against the Municipality of Comerío, its

mayor, and several municipal officials in the federal district

court in Puerto Rico, raising claims pursuant to 42 U.S.C. § 1983.

See Ruíz-Rosa v. Santiago-Rivera, Civ. No. 02-1034 (JP) (D.P.R.).

The complaint alleged that the individual plaintiffs were

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discharged in violation of the United States Constitution for

politically discriminatory reasons at various times from January

12, 2001 to June 30, 2001. During the litigation, notwithstanding

numerous extensions, the plaintiffs repeatedly failed to comply

with the court's discovery and related orders, providing the court

with no explanation for their refusal to obey its orders. Among

other things, plaintiffs failed to explain the legal theory of each

plaintiff's case, which the judge stated "should have been filed

with the complaint." As a result of plaintiffs' misconduct,

defendants lacked the information necessary to file a motion to

dismiss on qualified immunity grounds.

On January 15, 2003, in response to defendants' motion to

dismiss, the district court dismissed the case without prejudice.

At the end of its order, the court stated that it was dismissing as

a sanction for plaintiffs' repeated failure to abide by its orders:

The Court must make it clear that it is not a parking lot
for stagnant cases. . . . It is evident that with their
non-compliance, Plaintiffs have not only hindered
Defendants' handling of this case, but also hindered the
Court's carefully laid timetable for this case. The
Court must mention that it currently has some 15 cases of
this nature on its docket, with a total of almost 500
plaintiffs. It cannot be delaying its crowded docket and
timetable with something as basic as a legal theory and
answers to interrogatories without a suitable
explanation.

* * *

The Court agrees with Defendants, and for Plaintiffs'
repeated failure to abide by this Court's Orders, hereby
GRANTS Defendants' motion to dismiss, and DISMISSES this
case, without prejudice.

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The plaintiffs did not appeal from or otherwise contest the court's

grounds or its order.

On December 18, 2003, nearly one year later and

approaching three years from the alleged political firings,

plaintiffs filed the instant § 1983 action which, the parties

agree, is identical to the previous one.1 No explanation of the

theory of each plaintiff's case was provided. Defendants responded

by moving to dismiss the new action as time-barred, citing the

applicable one-year statute of limitations, Article 1868(2) of the

Puerto Rico Civil Code, 31 P.R. Laws Ann. § 5298(2). In

opposition, plaintiffs denied that the new action was time-barred.

They contended, instead, that the bringing of the original action

had tolled the running of the statute of limitations, and that

under Puerto Rico's tolling rules the subsequent dismissal of that

action without prejudice caused the one-year statute to run anew

from the date of dismissal, providing plaintiffs with an additional

year within which to refile their complaint. As plaintiffs brought

the present action within eleven months following the dismissal,

they insisted that it was timely filed.

The district judge, who was not the same judge who had

dismissed the previous action, rejected plaintiffs' tolling

argument. He noted that the previous action had been dismissed for

1
Several of the plaintiffs in the original action did not,
however, join in the current action.

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plaintiffs' repeated failure to abide by the court's orders. See

López-González v. Santiago-Rivera, 220 F.R.D. 386, 386-87 (D.P.R.

2004). The judge concluded that to "permit plaintiffs to benefit

from their own misconduct by awarding them a new 1-year term to

toll the statute of limitations and thus grant them the unwarranted

option of re-instituting their dismissed suit . . . would be

tantamount to stripping the district court of its sanctioning power

over litigants who choose to blatantly disregard court orders and

manipulate court proceedings for their own benefit." Id. at 387.

Allowing the new one-year term would also unfairly prejudice the

defendants who had diligently defended the original suit. Id. The

district court, therefore, dismissed the current action, concluding

that "the involuntary dismissal of plaintiffs' previous action,

albeit 'without prejudice' did not toll the applicable statute of

limitations and the instant action, filed eleven months later, must

be DISMISSED as time-barred." Id. at 388. This appeal followed.

II. Discussion

We review de novo a district court's order granting a

Rule 12(b)(6) motion based on statute of limitations grounds.

TAG/ICIB Servs., Inc. v. Pan Am. Grain Co., 215 F.3d 172, 175 (1st

Cir. 2000).

A section 1983 action borrows the forum state's statute

of limitations for personal injury claims. See Wilson v. Garcia,

471 U.S. 261, 269 (1985); Carreras-Rosa v. Alves-Cruz, 127 F.3d

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172, 174 (1st Cir. 1997). Here, as the parties agree, the

applicable statute is Puerto Rico's one-year limitations for tort

actions, Article 1868(2) of the Civil Code, 31 P.R. Laws Ann. §

5298(2) (2002). Carreras-Rosa, 127 F.3d at 174; see infra note 3.

Federal law determines the date of accrual. Rivera-Muriente v.

Agosto-Alicea, 959 F.2d 349, 353 (1st Cir. 1992). Under federal

law, the limitations period began to run when each employee

received his or her notice of the termination decision. See

Chardon v. Fernandez, 454 U.S. 6, 8 (1981). The complaint

indicates that the plaintiffs received knowledge of the challenged

personnel actions at least by sometime during the period from

January 12, 2001 to June 30, 2001.2 Putting aside any issue of

tolling, therefore, the plaintiffs were required to file their

federal complaints within a year from the 2001 dates on which each

received notice of termination.

Plaintiffs did, in fact, file the original action shortly

before expiration of the one-year period. The first issue is

whether, under Puerto Rican law, the involuntary dismissal of the

original action, a dismissal stated to be without prejudice but

expressly imposed as a sanction for non-compliance with court

2
From the complaint, it appears that six of the eleven
plaintiffs received notice that their employment was being
terminated in January 2001. Of the remaining plaintiffs, one
plaintiff was terminated on March 30, 2001, three were terminated
on June 30, 2001, and the termination date of one plaintiff's
employment is not stated.

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orders, tolled the statute of limitations so as to cause it to run

anew for one year from January 15, 2003, the date of dismissal,

making timely plaintiffs' December 18, 2003, filing of the current

action.

Federal law under § 1983 borrows a state's coordinate

rules on tolling unless they are inconsistent with the federal

Constitution and law, or with the federal policy underlying § 1983.

Board of Regents v. Tomanio, 446 U.S. 478, 484-86 (1980);

Rodríguez-García v. Municipality of Caguas, 354 F.3d 91, 97 (1st

Cir. 2004); Fernandez v. Chardon, 681 F.2d 42, 49-50 (1st Cir.

1982).3 Under Puerto Rico tolling rules, which are based on the

Spanish civil law, the institution of an action in court is

commonly held not only to interrupt the running of the applicable

statute of limitations but, at least in the event of a voluntary or

usual non-prejudicial dismissal of the original action, to cause

the entire limitations period to run anew from the date the

previous action came to a definite end. Wiscovich v. Weber Dental

Mfg. Co., 835 F.2d 409, 410 (1st Cir. 1987) (reporting Supreme

Court of Puerto Rico's reply to certified question); see also

Rodriguez Narvaez v. Nazario, 895 F.2d 38, 43 (1st Cir. 1990)

3
While Puerto Rico is not a state, our court has treated
Puerto Rico as if it were a state for purposes of application of
this rule. See, e.g., Rodríguez-García, 354 F.3d at 97. Neither
party contends otherwise.

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(collecting cases); Wiscovich v. Weber Dental Mfg. Co., 19 P.R.

Offic. Trans. 592, 119 D.P.R. 550 (1987).

Here, the original complaint was timely filed on January

10, 2002, leaving approximately three days to about five months

(depending on the date of accrual for each individual plaintiff)

before the one-year statute would have expired. Thereafter, the

action was involuntarily dismissed by the court without prejudice

explicitly as a sanction for plaintiffs' repeated failure to abide

by the court's orders. The instant action was filed eleven months

after the dismissal of the original action. Thus, unless, as

plaintiffs contend, the entire one-year limitations period was

renewed by the dismissal order, the instant action is time-barred.

In contending that under Puerto Rico law the bringing of

their original complaint followed by its dismissal without

prejudice renewed the one-year prescriptive period as of the

dismissal date, plaintiffs rely upon Puerto Rico's restart tolling

principle already mentioned. Defendants reply that in none of the

cited Puerto Rico cases invoking that principle was the initial

action dismissed as a disciplinary measure to sanction plaintiffs'

failure to proceed in conformity with the court's orders. For

example, Moa v. Commonwealth, 100 P.R.R. 573 (1972), cited by

plaintiffs, involved merely an amendment to the complaint (to

clarify that the minor plaintiff's father was seeking damages for

his own pain and suffering) made on the first day of trial.

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Defendants there argued that the amendment was time-barred, but the

Court found that the initial complaint tolled the statute of

limitations. Id. at 579. In Feliciano v. P.R. Aqueduct & Sewer

Auth., 93 P.R.R. 638 (1966), also cited by plaintiffs, the Court

merely held that the filing of a complaint for damages tolled the

statute of limitations, even though the complaint was not served

within the prescriptive period. Id. at 643.

Other cases emphasized by plaintiffs similarly do not

specifically relate to involuntary dismissals imposed as

sanctions.4 See García Aponte v. Commonwealth of P.R., 135 D.P.R.

137, 1994 P.R.-Eng. 909243 (1994) (tolling produced by voluntary

dismissal); Durán Cepeda v. Morales Lebrón, 12 P.R. Offic. Trans.

777, 112 D.P.R. 623 (1982) (tolling in the context of previous

dismissals for lack of jurisdiction and venue); Barrientos v. Gov.

of the Capital, 97 P.R.R. 539 (1969) (initial complaint tolled

statute of limitations such that a later amendment of the complaint

to join an indispensable party was timely).

The issue before us, therefore, is whether in the present

circumstances, where a dismissal without prejudice was imposed

4
Martínez v. Sociedad de Gananciales, 145 D.P.R. 93 (1998)
likewise fails to relate to a dismissal for misconduct, and we
further note that plaintiffs have not provided a translation of
Martínez as required under this Court's Local Rule 30(d). Thus,
the case may not be used in support of their position. See
Gonzalez-Morales v. Hernandez-Arencibia, 221 F.3d 45, 50 n.4 (1st
Cir. 2000) (finding waiver of arguments stemming from an
untranslated Puerto Rico Supreme Court opinion).

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specifically as a sanction for repeated disobedience of the court's

orders, Puerto Rico would apply the same tolling rule applied in

more conventional cases. Puerto Rico's tolling rules are products

of the civil law. No Puerto Rican or other civil law precedent or

commentary has been called to our attention dealing with this

precise situation. We cannot, without such guidance, confidently

predict how the Puerto Rico courts would resolve this case. See

Wiscovich, 19 P.R. Offic. Trans. at 602; Durán Cepeda, 12 P.R.

Offic. Trans. at 779-82.

There is, however, a relevant aspect of contemporary

Puerto Rico law that should be noted. Rule 39.2 of the Puerto Rico

Rules of Civil Procedure, like Fed. R. Civ. P. 41(b), governs

involuntary dismissals imposed as sanctions for failure to comply

with court orders. Both the federal rule, which governs here, and

Puerto Rico's similar rule, not only authorize courts to dismiss an

action for a plaintiff's failure to comply with court orders,5 but

also provide that dismissals for non-compliance with court orders

will operate as an adjudication upon the merits unless the court

5
Compare Fed. R. Civ. P. 41(b) ("For failure of the plaintiff
to prosecute or to comply with these rules or any order of court,
a defendant may move for dismissal of an action or of any claim
against the defendant."), with 32 P.R. Laws Ann. App. III, R.
39.2(a) (2001) ("Where the plaintiff fails to comply with these
rules or with any order of the court, the court, on its own motion
or on motion of a defendant, may dismiss an action or any claim
against him.").

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otherwise specifies.6 Thus, had the district court dismissed the

first action without labeling the dismissal as being "without

prejudice," the action would have been automatically terminated as

an adjudication upon the merits.

Here, the court "otherwise specified" by declaring the

dismissal to be "without prejudice." A dismissal without

prejudice, as opposed to an adjudication upon the merits, "is

dismissal without barring the plaintiff from returning later, to

the same court, with the same underlying claim." Semtek Int'l Inc.

v. Lockheed Martin Corp., 531 U.S. 497, 505 (2001). Thus, the

district judge, by dismissing without prejudice, permitted

plaintiffs to continue with their lawsuit. Defendants argue that

this is all very well -- the "without prejudice" language avoided

res judicata and allowed the litigation to continue. But, say

defendants, this in no way necessarily indicates that the full

statute of limitations should be allowed to rerun, given the fact

that the dismissal was explicitly for repeated failure to abide by

the court's orders -- serious misconduct that enabled plaintiffs to

stop the case dead in its tracks in spite of defendants' diligence.

Allowing plaintiffs another full year to delay in such

6
"Unless the court in its order for dismissal otherwise
specifies," a dismissal under Rule 41(b) "operates as an
adjudication upon the merits." Fed. R. Civ. P. 41(b). A dismissal
under the Puerto Rico rule similarly "operates as an adjudication
upon the merits," "[u]nless the court in its order for dismissal
otherwise specifies." 32 P.R. Laws Ann. App. III, R. 39.2(c).

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circumstances would simply reward and exacerbate rather than

counteract their earlier, abusive foot-dragging.

In analogous circumstances, our court has held that an

involuntary dismissal made without prejudice but as a sanction does

not toll the statute of limitations under common law and equitable

principles. See Chico-Velez v. Roche Prods., Inc., 139 F.3d 56,

58-59 (1st Cir. 1998) (dismissal without prejudice for failure to

prosecute did not toll 90-day filing period for action under the

Americans with Disabilities Act); Hilton Int'l Co. v. Union De

Trabajadores De La Industria Gastronomica De P.R., 833 F.2d 10, 11

(1st Cir. 1987) (dismissal of action under the Labor Management

Relations Act "without prejudice" as a sanction for employer's

failure to comply with discovery order did not toll the statute of

limitations).

We cannot say for sure whether similar considerations

would lead a Puerto Rico court to make an exception in this case to

its civil law restart tolling principle. Neither the district

court nor the parties have pointed to a specific, material

exception in the civil law. However, in Durán Cepeda v. Morales

Lebrón, Chief Justice José Trias Monge mentions a footnote to a

civil law commentary "[f]or cases where the [tolling] rule is

abused or used in bad faith." 12 P.R. Offic. Trans. at 785 n.1.

This follows a declination to discuss, as immaterial to that case,

"possible exceptions to [the general restart] rule." Id. at 785.

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Thus, it seems there are exceptions in the civil law to the restart

rule, and that abuse or bad faith conduct would be a basis for an

exception. See id.; see also Feliciano, 93 P.R.R. at 643 (noting

that the tolling rule "does not constitute a license to delay

unjustifiedly the determination of liability of a debtor inasmuch

as Rule 39.2 of the Rules of Civil Procedure . . . provide[s] for

the dismissal of the action for failure to prosecute with diligence

. . . .").

Here, the plaintiffs abused the court's processes. They

repeatedly failed to abide by the court's orders and so allow the

case to move forward. By their misconduct, as the court found,

plaintiffs "hindered Defendants' handling of this case" and "the

Court's carefully laid timetable for this case." In such

circumstances, when allowed to refile their case after dismissal,

plaintiffs were under an implicit obligation to refile promptly

rather than to continue for another year the very delay that had

caused the court to dismiss. Plaintiffs, however, waited out

almost another full year -- only to file an identical, unamplified

complaint, which the first judge had already said was deficient.

As noted, Puerto Rico's Rule 39.2(c), like Fed. R. Civ.

P. 41(b), expressly authorizes dismissal of a case for violation of

court orders. See supra note 5. No less than the federal courts,

Puerto Rico accepts the familiar proposition that "disobedience of

court orders, in and of itself, constitutes extreme misconduct

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(and, thus, warrants dismissal)." Tower Ventures, Inc. v. City of

Westfield, 296 F.3d 43, 46 (1st Cir. 2002). It would seem odd,

therefore, if Puerto Rico law were interpreted in the present

circumstances to give plaintiffs, whose previous case was dismissed

for failure to move forward in compliance with court orders,

another full year to do nothing before bringing a repeat action.

For plaintiffs to sit on their hands for nearly a full year before

refiling, as they did here, might in such circumstances, regardless

of the restart rule, be regarded by a Puerto Rico court -- as it

was below -- as wrongful conduct unfairly prejudicing the

defendants. See Durán Cepeda, 12 P.R. Offic. Trans. at 785 & n.1.

To be sure, in dismissing without prejudice, the district

judge may be presumed to have meant to allow plaintiffs to refile

their claim within whatever time, if any, lay within the applicable

statute of limitations.7 But it does not follow that he meant to

reward them by resetting the game clock back to zero at the very

moment of the disciplinary dismissal. That doing so would be wrong

was the view of the second Puerto Rico district judge, and this,

7
The Supreme Court of the United States has stated that
"Black's Law Dictionary (7th ed. 1999) defines . . . 'dismissal
without prejudice' as '[a] dismissal that does not bar the
plaintiff from refiling the lawsuit within the applicable
limitations period.'" Semtek Int'l Inc., 531 U.S. at 505-06. The
question here is what is the applicable limitations period and, in
particular, whether an exception to the restart component of Puerto
Rico's tolling rule would be made in a situation where renewal of
the running of the statute would extend and reward the very abusive
conduct that led to dismissal.

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upon consideration, is our own view of Puerto Rico's law in these

very special circumstances, although, given the civil law basis of

Puerto Rico's tolling rule, we cannot say for sure.

Whatever the correct reading of Puerto Rico's law,

however, the egregious conduct exhibited in this case warrants our

holding that federal policies underlying 42 U.S.C. § 1983 require

that we apply in this federal case something less than Puerto

Rico's restart tolling principle. See Tomanio, 446 U.S. at 484-86

(federal law under § 1983 borrows state's tolling rule unless it is

inconsistent with federal policy underlying the cause of action).

In this case, use of the restart tolling rule would

frustrate the policy of repose, applicable in federal lawsuits, see

id. at 487-88, which "is designed to protect defendants against the

prosecution of stale claims and to protect the courts from having

to decide the merits of such claims when the plaintiff has slept on

his rights." Williams v. Walsh, 558 F.2d 667, 675 (2d Cir. 1977).

Here, plaintiffs not only hindered the progress of the original §

1983 action by repeatedly disobeying court orders without

explanation, but they waited nearly one year after dismissal (and

almost three years after the alleged firings) to file the very same

complaint the first district judge had already determined to be

inadequate. To permit such flagrant and abusive delay in these

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circumstances would disturb any peace of mind defendants possessed

after dismissal of the original action.8

The strong policy of repose applicable in federal cases

is particularly pertinent in a § 1983 case, like this one, brought

against government officials. See Harlow v. Fitzgerald, 457 U.S.

800, 816 (1982) (taking into account the "the general costs of

subjecting [government] officials to the risks of trial--

distraction of officials from their governmental duties, inhibition

of discretionary action, and deterrence of able people from public

service"). Particularly essential, the Court has ruled, is the

prompt disposition of qualified immunity defenses in suits against

government officials for an alleged violation of a constitutional

right so as to reduce the litigation burden in time and money upon

the officials. See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 526

(1985); Harlow, 457 U.S. at 816-18.

The above federal policies would be undermined if these

plaintiffs, upon the court's dismissal of their case in order to

sanction their improper delaying tactics, were to be allowed yet

another year's delay under the restart rule. With respect to the

8
In Fernandez v. Chardon, 681 F.2d 42, 50 (1st Cir. 1982),
this court held that Puerto Rico's restart tolling rule applies
where a class action asserts a § 1983 claim and class certification
is denied for lack of numerosity. In the circumstances, we went on
to state that the application of the Puerto Rico restart rule was
not inconsistent with the principles of repose and federalism. Id.
In that case, however, the denial of class certification in the
original action did not involve the delay-related misconduct
present here.

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policy favoring the prompt disposition of qualified immunity

defenses, we note that defendants here were unable to file their

motion to dismiss for qualified immunity because of plaintiffs'

failure to provide, as ordered, their legal theories of the case.

Application of the restart rule would add a further burdensome year

of pending litigation upon the backs of these defendants. And the

instant complaint, like plaintiffs' previous one, still fails to

state a legal theory for each plaintiff, as earlier ordered,

leaving matters still at square one. We think federal policy

requires in this instance that the restart rule not be used as the

dispositive yardstick. We hold that application of that rule here

would contravene significant policy concerns underlying plaintiffs'

cause of action under 42 U.S.C. § 1983.

III. Conclusion

We affirm the order of the district court dismissing the

action below.

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