USCA1 Opinion
March 29, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1873
A. GREER EDWARDS, JR.,
Plaintiff, Appellant,
v.
FIRST AMERICAN TITLE INSURANCE COMPANY OF NEVADA, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Cyr, Circuit Judges.
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A. G. Edwards, Jr. on brief pro se.
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Richard B. Couser and Orr and Reno, P.A. on brief for appellees
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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
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brief for appellees Prince A. Hawkins and Hawkins, Rhodes & Sharp.
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Per Curiam. Plaintiff-appellant A. G. Edwards,
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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.,
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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
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jurisdiction. See, e.g., Levy v. Pyramid Co. of Ithaca, 687
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F. Supp. 48, 51 (N.D.N.Y. 1988), aff'd, 871 F.2d 9 (2nd Cir.
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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
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v. Colorado Outward Bound School, Inc., 822 F.2d 1524, 1527
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(10th Cir. 1987); United States v. American River
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Transportation, Inc., 150 F.R.D. 587 (C.D. Ill. 1993). This
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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
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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
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Medical Center, 749 F.Supp. 102, 105-09 (D.N.J. 1990).
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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.
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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
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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,
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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.
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App. Ct. 440, 446, 560 N.E.2d 1290, 1294 (1990), rev. den.,
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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
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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
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375, 376-78 (1987). See Sorenson v. Pavlikowski, 94 Nev.
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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.
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McIlwain, 145 F.R.D. 595, 603 (S.D. Fla. 1992).
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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,
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Inc., 678 F.2d 93, 94-95 (9th Cir. 1982). At the time of the
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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
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Edwards, supra, 973 F.2d 1027.
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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.),
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cert. denied, 494 U.S. 1082 (1990), we will not consider this
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issue.
Claims Against First American
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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
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Electronic Corp., 553 F.2d 735, 737 (1st Cir.), cert. denied,
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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
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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.
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The judgment of the district court is affirmed.
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