United States Court of Appeals
For the First Circuit
No. 01-1264
JORGE ORTIZ,
Plaintiff, Appellant,
v.
GASTON COUNTY DYEING MACHINE CO.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Richard Oare for appellant.
Calum B. Anderson, with whom Danaher, Tedford, Lagnese &
Neal, P.C. were on brief, for appellee.
January 28, 2002
LIPEZ, Circuit Judge. Jorge Ortiz appeals from the
judgment of the district court in favor of defendant, Gaston
County Dyeing Machine Co. (“Gaston County”). The court
concluded that Ortiz's products liability claims were barred by
Pennsylvania's two-year statute of limitations, rejecting his
contention that Massachusetts law applied instead. After the
district court entered summary judgment for Gaston County, Ortiz
moved to vacate the judgment under Fed. R. Civ. P. 59(e), and to
transfer the case to the district of North Carolina under 28
U.S.C. § 1404(a). In support of those motions, Ortiz argued for
the first time that his claims were governed by North Carolina
law. The district court denied both motions, and Ortiz now
appeals, challenging the court's grant of summary judgment and
its subsequent denial of his motion for a transfer of venue. We
affirm.
I.
This case arises out of an injury Ortiz suffered while
working at Northeast Bleach & Dye in Schuylkill Haven,
Pennsylvania. Ortiz alleges that, on or about July 10, 1997,
his left hand was caught in the “slack loop washer” machine he
was operating. Since the machine lacked an emergency “trip
switch,” Ortiz was unable to shut it off when his gloved hand
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first became caught in the gears. As a result, he suffered
extensive injury to his hand and forearm.
Roughly two and one half years after his injury, Ortiz
set about obtaining recompense from the company or companies
responsible for the machine's design and manufacture, on the
theory that the absence of a trip switch was a design defect.
The machine's blueprints suggested three possible defendants:
the Rodney Hunt Company (now known as “Rohunta”), a
Massachusetts corporation; American Argo Corp., a Maryland
corporation; and Gaston County, a North Carolina corporation.
On December 2, 1999, Ortiz filed suit in the District of
Maryland, naming all three companies as defendants. He
voluntarily dismissed that complaint, however, after it became
clear that the only defendant with any connection to Maryland –
American Argo – was not involved in the manufacture or design of
the machine.
On February 16, 2000 (approximately two years and seven
months after his injury), Ortiz filed a second complaint against
Rohunta and Gaston County, this time in the District of
Massachusetts. Massachusetts, like Maryland, has a three-year
statute of limitations for products liability claims.
Pennsylvania, on the other hand, permits such claims only if
brought within two years of the date of the injury. Not
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surprisingly, then, the question quickly arose as to which
state's law governed Ortiz's claim.
Arguing that Pennsylvania law applied, both defendants
moved for summary judgment on the ground that Ortiz's claim was
barred by that state's two-year statute of limitations. They
emphasized that the injury occurred in Pennsylvania; Ortiz lived
and worked there at the time of the injury; and the machine was
sold, serviced, and maintained in Pennsylvania. Thus, the
defendants argued, Pennsylvania had a greater interest in
Ortiz's claim than did Massachusetts.
Ortiz disagreed. The crucial question for choice of
law purposes, he argued, was not where the injury occurred, but
where the defect occurred; that is, where the machine was
designed and manufactured. Claiming that the machine was
designed and manufactured by Rohunta, a Massachusetts company,
Ortiz argued that Massachusetts law applied.
In fact, the machine was manufactured and designed by
Gaston County at its principal place of business in North
Carolina. On September 22, 2000 – several days before the
scheduled hearing on the defendants' motions for summary
judgment – Gaston County filed an affidavit to that effect,
making clear that Rohunta had played no role in designing,
manufacturing, or selling the machine. At the hearing on
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September 28, 2000, Rohunta invoked that affidavit as an
independent basis for dismissing Ortiz's claims against it. The
court gave Rohunta until October 19, 2000, to submit its own
affidavit explaining its role, if any, in designing and
manufacturing the machine, and gave Ortiz until November 2,
2000, to respond. Rohunta filed the requested affidavit,
together with a supplemental memorandum in support of its motion
for summary judgment emphasizing that there was no basis for
application of Massachusetts law if, as it now appeared, the
machine had not been manufactured there. Despite the
opportunity to do so, Ortiz did not respond to Gaston County's
affidavit, or to Rohunta's new arguments.
On November 29, 2000, the district court granted
defendants' motions for summary judgment and entered judgment in
their favor. Massachusetts, the court explained, will apply
another state's statute of limitations where (a) allowing the
claim to go forward under the longer Massachusetts statute of
limitations “would serve no substantial interest of the forum,”
and (b) “the claim would be barred under the statute of
limitations of a state having a more significant relationship to
the parties and the occurrence.” New England Tel. & Tel. Co.
v. Gourdeau Constr. Co., 647 N.E.2d 42, 45 (Mass. 1995) (citing
Restatement (Second) of Conflict of Laws, § 142). The court
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concluded that both conditions were satisfied here. As between
Massachusetts and Pennsylvania, the latter clearly had the more
significant relationship to the parties and the occurrence. The
undisputed facts showed that the machine was sold and maintained
in Pennsylvania, and allegedly caused injury to Ortiz, a
Pennsylvania resident, while he was working at a Pennsylvania
business. By contrast, “no significant contacts with
Massachusetts existed that would justify applying Massachusetts'
law to defendant[s].” Thus, Pennsylvania's statute of
limitations applied, and Ortiz's claim was time-barred.
Ortiz did not challenge the district court's decision
to apply the Pennsylvania statute of limitations in lieu of
Massachusetts's. Instead, he attempted to salvage his claims
against Gaston County through application of yet another three-
year statute of limitations – North Carolina's. He pursued this
initiative in two steps. First, on December 5, 2000, he filed
a motion for transfer of venue under 28 U.S.C. § 1404(a),
seeking transfer to the District of North Carolina, where Gaston
County has its principal place of business. In a supporting
memorandum of law, Ortiz argued that Gaston County had
“withheld” until the last possible moment the crucial fact that
it had designed and manufactured the machine in North Carolina.
As a result of such trickery, Ortiz explained, he had filed suit
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in Massachusetts instead of North Carolina. Accordingly,
transfer was proper so that he would not be “punished” for
Gaston County's misbehavior.
Recognizing that there was nothing left of the case to
transfer in its present posture, Ortiz also filed a motion under
Rule 59(e) of the Federal Rules of Civil Procedure. In that
motion, filed on December 11, 2000, Ortiz alleged that his
counsel had not received a copy of the district court's November
29 judgment until after filing the motion to transfer, and asked
the court to vacate its judgment to permit him to transfer his
claim to the district court in North Carolina.1 Ortiz pointed
out that his claim would be permitted under North Carolina's
three-year statute of limitations. However, the motion was
unaccompanied by a memorandum of law, and contained no
substantive argument for application of North Carolina law.
Despite the absence of any developed choice of law
analysis, the two motions raised the possibility that North
Carolina might have a more significant relationship to the case
than Pennsylvania, given its connections to the design and
1Rule 59(e) provides that a motion “to alter or amend a
judgment” may be filed within 10 days of the entry of judgment.
We have held that such motions properly may seek to vacate or
reverse a judgment rather than merely “amend” it. Nat'l Metal
Finishing Co. v. Barclays American/Commercial, Inc., 899 F.2d
119, 123-24 (1st Cir. 1991).
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manufacture of the allegedly defective machine and to defendant
Gaston County. In support of his motion to transfer, Ortiz
emphasized that the district court had not taken that
possibility into account in its summary judgment decision,
having focused instead on the relative interests of Pennsylvania
and Massachusetts. However, the “new” information that Gaston
County had manufactured the machine in North Carolina called
that decision into question: “Because of the introduction of
this new forum [North Carolina] and the new contacts related to
that forum, there can be no certainty in the outcome of the
choice of law principles, until they have been applied.” Thus,
Ortiz argued, the district court's judgment should be vacated
and the case transferred to North Carolina so that a court there
could determine whether North Carolina law governed Ortiz's
claims.
The district court denied both motions without
explanation, noting only that there was “no basis” for revoking
the grant of summary judgment, and that the entry of judgment
precluded transfer under § 1404(a). Ortiz filed a timely notice
of appeal, challenging the denial of his post-judgment motions
as well as the earlier grant of summary judgment in favor of
Gaston County. He does not pursue his claims against Rohunta.
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II.
On appeal, Ortiz has abandoned any attempt to argue
that Massachusetts law should apply. Instead, he contends that
the district court erred by not applying North Carolina law.
Ortiz neglected to raise that argument in response to Gaston
County's motion for summary judgment. For purposes of that
judgment, therefore, we deem it waived. See Landrau-Romero v.
Banco Popular de Puerto Rico, 212 F.3d 607, 612 (1st Cir. 2000)
(stating that argument raised for first time in post-judgment
motion could not be used to challenge grant of summary
judgment); Arrieta-Gimenez v. Arrieta-Negron, 859 F.2d 1033,
1037 (1st Cir. 1988) (concluding that choice of law argument not
presented to district court in motion for summary judgment was
waived); cf. Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076,
1095 (1st Cir. 1989) (explaining that appellate court will hold
party to choice of law position advanced in district court).
Ortiz did raise the argument for application of North
Carolina law in his post-judgment motions. On appeal, he argues
that the district court erred in denying his motion for transfer
of venue; he does not discuss the court's denial of his Rule
59(e) motion. However, once the court entered judgment for
Gaston County, it was too late to request a transfer. Section
1404(a) provides that, “[f]or convenience of parties and
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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.” 28 U.S.C. § 1404(a). When
a case is transferred under § 1404, it travels to the transferee
court as is, “leaving untouched whatever already has been done.”
15 Charles Alan Wright, et al., Federal Practice and Procedure
§ 3846 (2d ed. 1986). Accordingly, if the grant of summary
judgment stood, there would not be any “civil action” to
transfer.
In order to argue that the district court abused its
discretion in denying his motion to transfer, therefore, Ortiz
would have to show that the court also abused its discretion in
refusing to vacate its judgment under Rule 59(e). He has not
even attempted to do so. Indeed, his brief is devoid of any
mention of Rule 59(e). We repeatedly have warned litigants that
failure to brief an argument will result in waiver for purposes
of appeal. See Gosselin v. Commonwealth (In re Gosselin), ---
F.3d ---, 2002 WL 15371, at *1 (1st Cir. Jan. 9, 2002); Garcia-
Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 645 (1st Cir.
2000); Piazza v. Aponte Roque, 909 F.2d 35, 37 (1st Cir. 1990);
see also United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) (“It is not enough merely to mention a possible argument
in the most skeletal way, leaving the court to do counsel's
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work, create the ossature for the argument, and put flesh on its
bones.”).
Even if the issue were not waived, we could not say the
district court abused its discretion in denying the Rule 59(e)
motion. See Mackin v. City of Boston, 969 F.2d 1273, 1279 (1st
Cir. 1992) (“[O]nce a motion to dismiss or a motion for summary
judgment has been granted, the district court has substantial
discretion in deciding whether to reopen the proceedings in
order to allow the unsuccessful party to introduce new material
or argue a new theory.”). Here, Ortiz knew of the relevant
information before oral argument on the summary judgment motion,
and more than two months before the district court's decision on
November 29. There was no good reason evident for Ortiz's delay
in raising the issue.
Affirmed.
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