UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
Nos. 95-1004
95-1200
AUDLEY McINTOSH,
Plaintiff, Appellant,
v.
THOMAS ANTONINO, ET AL.,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Selya, Cyr and Stahl, Circuit Judges.
Bernard A. Kansky for appellant.
Thomas C. Tretter, Assistant Corporation Counsel, with whom
Stephen H. Clark, Acting Corporation Counsel, was on brief, for
appellees.
December 1, 1995
SELYA, Circuit Judge. Well after he had been arrested
SELYA, Circuit Judge.
and allegedly manhandled by Boston police officers, plaintiff-
appellant Audley McIntosh commenced a civil action under 42
U.S.C. 1983. The district court granted summary judgment in
the defendants' favor on the ground that McIntosh had brought
suit a day late. McIntosh appeals. We affirm.
I. BACKGROUND
I. BACKGROUND
We set forth the substantiated facts in the light most
congenial to the party opposing summary judgment. See Pagano v.
Frank, 983 F.2d 343, 347 (1st Cir. 1993).
Boston police officers arrested appellant during the
morning of January 7, 1990. He alleges that the gendarmes
wrongfully detained him for several hours and battered him to
boot. That afternoon, the police transported appellant to the
emergency room of a local hospital where he was treated and
released at approximately 7:00 p.m. The authorities charged him
with a multitude of offenses (including assault and battery of a
police officer), but they did not further detain him.
In short order, a Massachusetts state court dismissed
all the charges. At a much later date, appellant's attorney
prepared a four-page complaint confined exclusively to a claim
premised on 42 U.S.C. 1983. The complaint contained no pendent
causes of action. It named Mayor Raymond Flynn, Police
Commissioner Francis Roache, and several "John Does" as
defendants. On January 7, 1993 three years to the day after
appellant's infelicitous encounter with the police the lawyer
2
(1) transmitted a facsimile of the complaint's first two pages to
the clerk's office of the federal district court, and (2) sent
the original complaint, with the required filing fee, to the
clerk by certified mail. The clerk's office received the
abbreviated facsimile transmission after hours (i.e., between
6:00 and 7:00 p.m. on January 7).1 The mailed envelope reached
the office on January 8 and a deputy clerk docketed the case that
day.
The defendants answered the complaint, denied any
wrongdoing, and asserted an affirmative defense based on the
statute of limitations. Following the completion of discovery
and a belated effort to reconfigure the suit,2 the remaining
defendants moved for brevis disposition under Fed. R. Civ. P.
56(c). The lower court granted appellant two extensions of time
for responding to the motion. When the second extension expired,
1For some reason, the remaining two pages of the complaint,
including the demand for judgment, were not sent by facsimile
transmission to the clerk's office until the next afternoon.
2On January 20, 1994, appellant filed an amended complaint
that spelled out a bevy of pendent state-law claims, including
abuse of process, malicious prosecution, negligent supervision,
assault and battery, false imprisonment, intentional infliction
of emotional distress, civil conspiracy, and negligence. The
amended complaint also purported to add several individual police
officers and the City of Boston as defendants, and simultaneously
dropped the mayor and the police commissioner as parties. Given
the chronology, we doubt the efficacy of the amended complaint
either as a means of asserting neoteric claims or as a vehicle
for bringing new defendants into the case. See, e.g., Barrow v.
Wethersfield Police Dept., 66 F.3d 466, 468 (2d Cir. 1995)
(explaining that "John Doe" designation cannot be employed to
circumvent statutes of limitations, and affirming judgment for
individual police officers belatedly added to a civil rights
suit). Because we dispose of the appeal on other grounds, we
need not probe these points.
3
the court denied a third request and subsequently decided the
Rule 56 motion in the defendants' favor without considering the
delinquent opposition that appellant's counsel eventually
produced. See D. Mass. Loc. R. 56.1 (providing that the facts as
presented by the movant are deemed admitted for the purpose of a
summary judgment motion when no timely opposition is filed).
These appeals ensued.
II. THE LEGAL LANDSCAPE
II. THE LEGAL LANDSCAPE
The district court rested its decision on the ground
that appellant's section 1983 claim was time barred. On appeal,
McIntosh disputes this conclusion. To afford needed perspective,
we start by reviewing certain abecedarian legal principles that
inform our analysis of the issues presented.
A. The Summary Judgment Standard.
A. The Summary Judgment Standard.
Summary judgment is appropriate when the "pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(c). We have written copiously on the idiosyncracies of this
rule and on its ramifications, see, e.g., McCarthy v. Northwest
Airlines, Inc., 56 F.3d 313, 314-15 (1st Cir. 1995); Morris v.
Government Dev. Bank, 27 F.3d 746, 748 (1st Cir. 1994); National
Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.),
cert. denied, 115 S. Ct. 2247 (1995); Vasapolli v. Rostoff, 39
F.3d 27, 32 (1st Cir. 1994); Dow v. United Bhd. of Carpenters, 1
4
F.3d 56, 58 (1st Cir. 1993); Pagano, 983 F.2d at 347; Wynne v.
Tufts Univ. Sch. of Med., 976 F.2d 791, 793-94 (1st Cir. 1992),
cert. denied, 113 S. Ct. 1845 (1993); United States v. One Parcel
of Real Property (Great Harbor Neck, New Shoreham, R.I.), 960
F.2d 200, 204 (1st Cir. 1992); Rivera-Muriente v. Agosto-Alicea,
959 F.2d 349, 351-52 (1st Cir. 1992); Medina-Munoz v. R.J.
Reynolds Tobacco Co., 896 F.2d 5, 7-8 (1st Cir. 1990); Garside v.
Osco Drug, Inc., 895 F.2d 46, 48-49 (1st Cir. 1990), and it would
serve no worthwhile purpose to rehearse that jurisprudence here.
It suffices to reaffirm that "summary judgment's role is to
pierce the boilerplate of the pleadings and assay the parties'
proof in order to determine whether trial is actually required."
Wynne, 976 F.2d at 794.
To be sure, the district court's assessment of the
summary judgment record must comply with certain guidelines. The
most salient of these guidelines requires the court to interpret
the record in the light most hospitable to the nonmoving party,
reconciling all competing inferences in that party's favor. See
Pagano, 983 F.2d at 347. Nonetheless, a party contesting summary
judgment must offer the court more than posturing and conclusory
rhetoric. See Morris, 27 F.3d at 748; Medina-Munoz, 896 F.2d at
8. This principle is brought into bold relief when the motion
targets an issue on which the nonmoving party bears the ultimate
burden of proof. In that circumstance, the nonmovant must
"produce specific facts, in suitable evidentiary form," Morris,
27 F.3d at 748, in order to demonstrate the presence of a
5
trialworthy issue and thereby deflect the sharp blade of the
summary judgment ax.
Questions anent the applicability and effect of the
passage of time on particular sets of facts often are grist for
the summary judgment mill. See, e.g., Rivera-Muriente, 959 F.2d
at 352; Jensen v. Frank, 912 F.2d 517, 520 (1st Cir. 1990); Kali
Seafood, Inc. v. Howe Corp., 887 F.2d 7, 9 (1st Cir. 1989). And
when a defendant moves for summary judgment based on a plausible
claim that the suit is time barred, the onus of identifying a
trialworthy issue customarily falls on the plaintiff. See, e.g.,
Morris, 27 F.3d at 748.
B. The Statute of Limitations.
B. The Statute of Limitations.
The linchpin of the appellant's case is his section
1983 claim. We, therefore, train our sights exclusively on this
claim.3
Section 1983 creates a private right of action for
redressing abridgments or deprivations of federal constitutional
rights. The resultant liability is akin to tort liability. See
Heck v. Humphrey, 114 S. Ct. 2364, 2370 (1994); Memphis Community
3Apart from the section 1983 claim, the record reveals no
independent basis for federal jurisdiction. Thus, if the lower
court appropriately granted summary judgment on the section 1983
claim, then the court (which expressly disclaimed any intention
of exercising supplemental jurisdiction under 28 U.S.C.
1367(c)(3)) acted well within its discretion in jettisoning the
appended state-law claims. See Martinez v. Colon, 54 F.3d 980,
990-91 (1st Cir. 1995) (reaffirming principle that the district
court, in its discretion, may dismiss pendent claims
contemporaneous with a determination, in advance of trial, that
"no legitimate federal question exist[s]"), petition for cert.
filed, 64 U.S.L.W. 3250 (1995). Consequently, we need not
address any claim apart from the section 1983 claim.
6
Sch. Dist. v. Stachura, 477 U.S. 299, 305 (1986). Section 1983
does not contain a built-in statute of limitations. Therefore,
in processing such actions, a federal court must lift a
limitation period from state law. See Wilson v. Garcia, 471 U.S.
261, 276-80 (1985); Morris, 27 F.3d at 748; Rivera-Muriente, 959
F.2d at 352.
Massachusetts prescribes a three-year limitation period
for personal injury actions (such as tort suits for false arrest
or assault), see Mass. Gen. L. ch. 260, 2A (1992); see also
Street v. Vose, 936 F.2d 38, 40 (1st Cir. 1991) (per curiam),
cert. denied, 502 U.S. 1063 (1992), and the parties agreed before
the district court that it was appropriate to borrow from this
statute to derive the limitation period. Thus, the question
before the district court was whether the appellant brought his
section 1983 action within the prescribed three-year period.
In this venue, the parties briefed the appeal on the
same underlying assumption. At oral argument, however, the
appellant tried to recharacterize his section 1983 claim as one
for malicious prosecution to take advantage of the differently
configured limitation period. See Calero-Colon v. Betancourt-
Lebron, F.3d , (1st Cir. 1995) [No. 95-1193, slip op.
at 6-7] (discussing need and methodology for such
characterization). This effort comes too late and offers too
little. The original complaint asserted that appellant's civil
rights had been abridged by means of "false arrest" and "assault
and battery." The complaint did not mention malicious
7
prosecution and, indeed, there is nothing in the record to
suggest that any of the named defendants had a hand in whatever
prosecution may have transpired. Since the district court
properly characterized the suit as it stood as one for false
arrest, the question before us is precisely the same as the
question to which the district court responded. We review the
district court's answer to the question de novo. See Rivera-
Muriente, 959 F.2d at 352.
Although the limitation period is borrowed from state
law, the jurisprudence of section 1983 directs us to examine
federal law in order to determine the accrual period. See
Calero-Colon, F.3d at [slip op. at 5]; Morris, 27 F.3d at
748. Under federal law, accrual starts when the plaintiff
"knows, or has reason to know, of the injury on which the action
is based." Rivera-Muriente, 959 F.2d at 353. Most accrual
disputes focus on when the limitation period began to run, that
is, when the plaintiff's causes of action accrued. See, e.g.,
Calero-Colon, F.3d at [slip op. at 5-6]; Morris, 27 F.3d
at 749. Here, the commencement date is not a problem: all the
relevant actions of the police officers took place on January 7,
1990; the appellant was treated and released from the hospital
that day; and he knew then that he had been harmed. Thus, the
appellant's cause of action accrued on January 7, 1990. But the
accrual period is measured by both a starting date and an ending
date, and the pivotal controversy in this case concerns the
latter. Consequently, we must shine the light of our
8
understanding on the available facts to determine the date when
McIntosh took an action sufficient to interrupt the running of
the limitation period.
III. ANALYSIS
III. ANALYSIS
The district court's ruling is stark in its simplicity:
the appellant's section 1983 claim arose on January 7, 1990; the
three-year limitation period began to accrue then and there; the
time for bringing suit ran out on January 7, 1993; the
appellant's action was not filed until the next day; and,
accordingly, the suit was untimely. The appellant offers a
salmagundi of reasons to support his contention that the district
court erred in determining that time had passed him by. We
examine these reasons below.
A. Filing By Facsimile.
A. Filing By Facsimile.
The appellant posits that the January 7 facsimile
transmission satisfied the filing requirements of the Civil
Rules, thus stopping the limitations clock. He is whistling past
the graveyard. Absent a local rule authorizing the practice,
facsimile filings in a federal court are dead on arrival.
As of January 7, 1993, the Civil Rules provided in
pertinent part:
Papers may be filed by facsimile transmission
if permitted by rules of the district court,
provided that the rules are authorized by and
consistent with the standards established by
the Judicial Conference of the United States.
9
Fed. R. Civ. P. 5(e).4 The Judicial Conference has "authorized
courts, effective December 1, 1991, to adopt local rules to
permit the clerk to accept for filing papers transmitted by
facsimile transmission equipment, provided that such filing is
permitted only (1) in compelling circumstances or (b) under a
practice which was established by the court prior to May 1,
1991." Reports of the Proceedings of the Judicial Conference of
the U.S. 52-53 (1991). The appellant argues that, since the
Conference has authorized this method of transmission, filing by
facsimile is permissible. This argument disregards both the
realities of the instant situation and the text of Rule 5(e).
For one thing, the Conference, at the same time it
granted the limited authorization to which we have alluded,
warned that "the routine acceptance . . . of court documents by
facsimile would present practical problems and would create an
administrative and resource burden to the courts." Id. The
facsimile filing here occurred in the most mundane of contexts
and was not brought about by any special exigency but by the
attorney's nonchalance. Thus, the circumstances are hardly
"compelling."
For another thing, the appellant's argument ignores the
plain language of Rule 5(e). Implicit therein is the concept
4Later in 1993, Rule 5(e) was amended. The Advisory
Committee described the change as "a technical amendment" aimed
at "permit[ting] filing not only by facsimile transmissions but
also by other electronic means," Fed. R. Civ. P. 5(e), advisory
committee's note to 1993 amendment. The revision is not relevant
to these appeals.
10
that, absent a local rule authorizing filing by facsimile, such
filings are null. See, e.g., In re Hotel Syracuse, Inc., 154
B.R. 13, 17 (N.D.N.Y. 1993) (holding that a notice of appeal
filed by facsimile, not authorized under any local rule, did not
interrupt the progression of the appeal period). The appellant's
suggested construction would render the reference to local rules
superfluous. Since a court called upon to construe a procedural
rule should give effect, whenever possible, to every word and
phrase contained in the rule's text, see Jamerson v. Board of
Trustees of the Univ. of Ala., 80 F.R.D. 744, 749 (N.D. Ala.
1978), see also United States v. Ven-Fuel, Inc., 758 F.2d 741,
751-52 (1st Cir. 1985) (explicating similar principle in respect
to statutory construction), we decline to follow the appellant's
lead. The local rules of the United States District Court for
the District of Massachusetts do not authorize the filing of
papers by facsimile. That ends the matter.
In this case, moreover, the appellant's facsimile
filing is invalid for two other reasons. First, the January 7
transmission was incomplete. Although the notice pleading
requirements of the Civil Rules are to be construed liberally,
there are bounds to liberality. For purposes of commencing an
action, half a complaint particularly an unsigned half that
does not even contain a demand for judgment is no better than
none.
Second, the appellant did not send even the partial
facsimile transmission until after the close of business on
11
January 7, 1993. Despite the fact that Fed. R. Civ. P. 77(a)
states that "district courts shall be deemed always open for the
purpose of filing any pleading or other proper paper . . . ," the
word "filing" as used therein is a word of art. It "means
delivery into the actual custody of the proper officer."
Casalduc v. Diaz, 117 F.2d 915, 916 (1st Cir.), cert. denied, 314
U.S. 639 (1941). Consequently, Rule 77(a) has been interpreted
uniformly to mean that the clerk's office need not be kept open
around the clock, and that, outside of ordinary business hours,
merely leaving papers in a closed or vacant office does not
constitute "filing" sufficient for commencement of an action.5
See Greenwood v. State of N.Y. Office of Mental Health, 842 F.2d
636, 639 (2d Cir. 1988); Casalduc, 117 F.2d at 916; see also 12
Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure 3081, at 179 (1990).
B. Filing By Mailing.
B. Filing By Mailing.
The appellant argues that the complaint should be
deemed to have been filed on January 7, 1993, because it was
mailed on that date. This is a hard sell; as the appellant
acknowledges, the Civil Rules do not so provide, and the
proposition that he hawks therefore rises or falls on the
strength of his thesis that the district court should have
5After hours, papers can validly be filed by in-hand
delivery to the clerk or other proper official. See Casalduc,
117 F.2d at 916. In addition, some clerks' offices reportedly
have established so-called "night depositories" to accommodate
after-hours filings. This case does not involve an established
night depository, and we take no view of the efficacy of that
practice.
12
followed state practice. The proposition falls.
Mass. R. Civ. P. 3 permits the commencement of an
action either by filing the complaint (and the concomitant fee)
with the clerk of the appropriate court or by mailing the
complaint and fee to the clerk by certified or registered mail.
Thus, if the appellant had elected to sue in the state court
and state courts have concurrent jurisdiction in suits brought
under section 1983, see Maine v. Thiboutot, 448 U.S. 1, 3 n.1
(1980) mailing the complaint would have sufficed (if barely) to
eclipse the looming temporal bar. The appellant made a different
election, however, choosing to invoke the district court's
"arising under" jurisdiction, see 28 U.S.C. 1331, and to bring
suit in a federal venue. Therefore, federal rather than state
procedural rules govern. See Hanna v. Plumer, 380 U.S. 460, 470-
71 (1965).
The appellant suggests two reasons why this case does
not come within Hanna's sphere of influence. First, he tells us
that using the state procedural rule is fitting because the
federal question arises under section 1983 and, therefore, the
district court must borrow the appropriate statute of limitations
from state law. See Wilson, 471 U.S. at 276-80. But this is a
distinction bereft of a meaningful difference.
The borrowing directive means no more than it says.
"[W]hen it is necessary for a federal court to borrow a statute
of limitations for a federal cause of action, [the court should]
borrow no more than necessary." West v. Conrail, 481 U.S. 35, 39
13
(1987). Moreover, when a federal court borrows a limitation
period from state law for use in implementing a federal law that
does not possess a self-contained statute of limitations, the
court is nonetheless applying federal law. The federal court
"looks to state law for guidance, but it does so simply because
the creation of a statute of limitations is not considered a
suitable judicial task." Hemmings v. Barian, 822 F.2d 688, 689
(7th Cir. 1987). The mantra, then, is that when bridging
interstices in federal law, federal courts should borrow "only
what is necessary to close the gap left by Congress." West, 481
U.S. at 40 n.6.
Beyond the need to borrow a limitation period
simpliciter, the case at hand presents no occasion for resort to
state law. In the wake of West, federal courts consistently have
held that questions concerning the commencement of a section 1983
action in a federal court are governed by Fed. R. Civ. P. 3.
See, e.g., Martin v. Demma, 831 F.2d 69, 71 (5th Cir. 1987); Del
Raine v. Carlson, 826 F.2d 698, 706-07 (7th Cir. 1987). Rule 3
is complete on its face. The appellant has identified no lacuna
that must be filled by reference to state law, and none is
visible to us.
The seamlessness of Rule 3, and its fit with other
federal procedural rules, defeats the appellant's claim. Rule 3
adequately covers the mechanics of commencing an action in a
federal district court, and the rule makes it transpicuously
clear that an action is commenced when the papers are filed. In
14
turn, Fed. R. Civ. P. 5(e) defines filing, for all intents and
purposes, as "filing . . . with the clerk of the court."6 The
commencement construct created by the Civil Rules is complete and
self-contained, and leaves no room for improvisation. Under the
construct, the instant complaint was not effectively filed until
January 8, 1993, and, therefore, the underlying action was not
commenced within the limitation period. When papers are mailed
to the clerk's office, filing is complete only upon the clerk's
receipt of them. See Cooper v. City of Ashland, 871 F.2d 104,
105 (9th Cir. 1989) (per curiam); see also Torras Herreria v. M/V
Timur Star, 803 F.2d 215, 216 (6th Cir. 1986) ("Filings reaching
the clerk's office after a deadline are untimely, even if mailed
before the deadline.").
In a last-ditch effort to forestall the inevitable, the
appellant insists that the animating principle of Guaranty Trust
Co. v. York, 326 U.S. 99, 109-12 (1945), requires that we look to
the state procedural rule since establishing a time line will
determine the outcome of the litigation. This argument will not
wash.
A meaningful discourse on the applicability of federal
procedural rules in federal courts cannot begin and end with
York. In Hanna (a case decided subsequent to York), the Supreme
Court focused specifically on the purview of the Civil Rules and
6Rule 5(e) contains one explicit exception. It allows
judges, in their discretion, to "permit the papers to be filed
with the judge, in which event the judge shall note thereon the
filing date and forthwith transmit them to the office of the
clerk."
15
noted that "`outcome-determination' analysis was never intended
to serve as a talisman." Hanna, 380 U.S. at 467 (citing Byrd v.
Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 537 (1958)).
Even in a diversity case (where state law supplies the basis for
decision), the correct inquiry is not whether the choice between
federal and state procedural rules will prove outcome
determinative, but whether a federal rule exists that covers the
point in dispute. If it does, it must be applied. See id. at
469-74. Put another way, when federal and state procedural rules
collide, the federal rule necessarily trumps the state rule in a
federal forum.7 See id.; accord Aceves v. Allstate Ins. Co.,
F.3d , (9th Cir. 1995) [1995 WL 604009, at *8];
Cutting v. Town of Allenstown, 936 F.2d 18, 21 (1st Cir. 1991);
7Contrary to appellant's rodomontade, Walker v. Armco Steel
Corp., 446 U.S. 740 (1980), does not suggest a different result.
There, in a diversity case, the Supreme Court approved the
application of Oklahoma's tolling statute, which required actual
service of process, in lieu of Fed. R. Civ. P. 3. See id. at
742-44. The Court reasoned that the Oklahoma statute comprised a
"statement of a substantive decision by that state," forming an
"`integral' part of the several policies served by the statute of
limitations." Id. at 751-52. On this basis, the Court concluded
that "[federal] Rule 3 does not replace such policy
determinations," but, rather, exists "side by side" with the
state statute, "each controlling its own intended sphere of
coverage without conflict." Id. at 752.
The case at bar is not analogous to Armco Steel. In
the first place, the federal and state rules here at issue serve
exactly the same purpose and, to that extent, are in direct
conflict; both cannot be applied. In the second place, the
Massachusetts procedural rule is simply a procedural rule; it
does not implicate a substantive state policy. In the third
place, the Armco Steel Court took special care to refrain from
"address[ing] the role of Rule 3 as a tolling provision for a
statute of limitations, whether set by federal law or borrowed
from state law, if the cause of action is based on federal law."
Id. at 751 n.11.
16
Frechette v. Welch, 621 F.2d 11, 13-14 (1st Cir. 1980). As the
Court wrote in Hanna, "to hold that a Federal Rule of Civil
Procedure must cease to function whenever it alters the mode of
enforcing state-created rights would be to disembowel either the
Constitution's grant of power over federal procedure or Congress'
attempt to exercise that power . . . ." 380 U.S. at 473-74.
There is even less basis for charting so drastic a course where,
as here, the right at issue is created under federal rather than
state law.
To recapitulate, the general rule is that merely
placing a complaint in the mail does not constitute filing
sufficient to mark the commencement of an action in a federal
court. This case falls squarely within the maw of the general
rule. It follows inexorably that the appellant did not
seasonably commence his suit by mailing the complaint to the
clerk's office on January 7, 1990.
C. Miscellaneous Arguments.
C. Miscellaneous Arguments.
We have considered all the appellant's remaining
arguments and find them to be unpersuasive. Only three of them
require any comment.
1. The Failure to Grant a Third Extension. The
1. The Failure to Grant a Third Extension.
district court allowed the appellant two extensions of time
within which to oppose the defendants' motion for summary
judgment, but balked the third time around. The appellant
assigns error. We discern none.
The administration of filing deadlines is a matter of
17
case management that comes within the district court's
discretion. See Mendez v. Banco Popular de P.R., 900 F.2d 4, 6
(1st Cir. 1990); see also Fed. R. Civ. P. 6(b). Litigants cannot
expect that courts will dance to their every tune, granting
extensions on demand to suit lawyers' schedules. Given the
district court's generosity in granting two extensions, and the
weakness of the excuse proffered by the appellant's attorney in
seeking yet another boon,8 we see no hint of any arbitrariness
in the court's exasperated denial of the third extension.9 See
Harlow Fay, Inc. v. Federal Land Bank, 993 F.2d 1351, 1352 (8th
Cir.), cert. denied, 114 S. Ct. 87 (1993); Mendez, 900 F.2d at 7;
Baker v. Raulie, 879 F.2d 1396, 1399 (6th Cir. 1989); Clinkscales
v. Chevron U.S.A., Inc., 831 F.2d 1565, 1569 (11th Cir. 1987).
2. Waiver. The appellant asserts that, by failing to
2. Waiver.
move for judgment on the limitations defense earlier in the
proceedings, the defendants waived it. This assertion has no
foothold in the law. The defendants raised the affirmative
defense in a timeous manner by including it in their answer. See
Fed. R. Civ. P. 8(c), 12(b)(6), 12(h)(2). They were under no
8Counsel's statement amounts to little more than a plaint
that he was suddenly called out of town on other business on the
last day of the second extension period. But "most attorneys are
busy most of the time and they must organize their work so as to
be able to meet the time requirements of matters they are
handling or suffer the consequences." Pinero Schroeder v.
Federal Nat'l Mortgage Ass'n, 574 F.2d 1117, 1118 (1st Cir. 1978)
(per curiam).
9In an abundance of caution, we have examined the untimely
opposition that the appellant filed after the last extension
expired. Even if the opposition were fully considered, nothing
contained therein would alter the outcome of this appeal.
18
obligation to do more. Once a defendant timely raises a
limitations defense in his answer, the issue remains in the case
until it is deleted from the pleadings or resolved by the court.
See Pessotti v. Eagle Mfg. Co., 946 F.2d 974, 979 (1st Cir.
1991). There is no inequity in this rule; if the plaintiff
desires to force an up-or-down decision on the asserted defense
in the early stages of the case, he has the power to bring it to
the forefront. See Fed. R. Civ. P. 12(c)-(d).10 Here, the
appellant could have seized the opportunity but chose not to do
so. As a result, it does not lie in his mouth to complain of the
defense's alleged laggardness.
3. Disability. The appellant, in what seems to be an
3. Disability.
afterthought,11 suggests that he may have been under a
disability, and, therefore, the limitation period should be
tolled. On this record, the notion of any cognizable disability
is pure conjecture. In any event, we have regularly held that
"[i]ssues adverted to on appeal in a perfunctory manner,
unaccompanied by some developed argumentation, are deemed to have
been abandoned." Ryan v. Royal Ins. Co. of Am., 916 F.2d 731,
10Rule 12(c) provides in part that "any party may move for
judgment on the pleadings." Rule 12(d) provides in part: "The
defenses specifically enumerated (1)-(7) in subdivision (b) of
this rule, whether made in a pleading or by motion, and the
motion for judgment mentioned in subdivision (c) of this rule
shall be heard and determined before trial on application of any
party . . . ." (emphasis supplied).
11The appellant never advanced the argument below. Apart
from its other shortcomings, the argument fails for this reason
as well. See Clauson v. Smith, 823 F.2d 660, 666 (1st Cir.
1987).
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734 (1st Cir. 1990).
IV. CONCLUSION
IV. CONCLUSION
We need go no further. Over two and one-half centuries
ago, an English author called procrastination the thief of time.
See Edward Young, Night Thoughts (1745). As this case proves,
time, once stolen, engenders other losses as well. Because
McIntosh filed his civil action a day late, we affirm the
district court's entry of summary judgment in the defendants'
favor.
Affirmed.
Affirmed.
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