Wilson v. United States Government

                United States Court of Appeals
                    For the First Circuit
                                         

No. 93-2025

                    ROBERT WILSON, ET AL.,

                          Appellant,

                              v.

                  UNITED STATES GOVERNMENT,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

        [Hon. Raymond L. Acosta, U.S. District Judge]
                                                    
        [Hon. Hector M. Laffitte, U.S. District Judge]
                                                     
                                         

                            Before

                Cyr and Stahl, Circuit Judges,
                                             
                 and Pieras,* District Judge. 
                                            

                                         

Osvaldo Perez-Marrero for appellant.
                     
David V. Hutchinson, Assistant  Director, Admiralty Torts  Branch,
                   
Civil Division, with whom Frank W. Hunger, Assistant Attorney General,
                                     
Guillermo Gil, United States  Attorney, and Fidel Sevillano, Assistant
                                                       
United States Attorney, were on brief for appellee.

                                         

                         May 4, 1994
                                         

                 
*Of the District of Puerto Rico, sitting by designation

          STAHL, Circuit  Judge.   More than two  years after
          STAHL, Circuit  Judge.
                               

suffering  an  injury  at  sea,   plaintiff-appellant  Robert

Wilson1 attempted  to amend  his complaint against  a private

party to include the United States as defendant.  The amended

complaint sought damages under the Public Vessels Act and the

Suits in  Admiralty  Act,  both  of which  carry  a  two-year

statute  of limitations.   The  district court  dismissed the

claims as time-barred,  declining to  apply either  equitable

tolling,  or   Fed.  R.  Civ.  P.   15(c)'s  "relation  back"

provisions.  Finding no error, we affirm.

                              I.
                                

           FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
                                                   

          On  September  10,  1988, Wilson,  an  employee  of

General  Electric  Government  Services,   Inc.  (hereinafter

"GEGS"), whose  job entailed maintaining a  fleet of Seaborne

Powered  Target Boats (hereinafter  "SEPTARs") for the United

States  Navy, was  sent to  sea by  GEGS, along  with several

other  employees, in  a SEPTAR.   Wilson  and the  other crew

members  became stranded  in Hurricane  Gilbert  and required

rescue by the Coast Guard.  

          On September  30, 1988,  and again on  November 23,

1988,  counsel  for  Wilson   wrote  to  United  States  Navy

officials  requesting  transcripts  of  radio  communications

                    

1.  Wilson,  one of  several  plaintiffs below,  is the  only
plaintiff to pursue appeal.

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                              2

recorded  during  the  stranding  incident.     Counsel  also

requested  the results of  any Navy  investigations regarding

the incident.  These letters did  not allude in any manner to

the  possibility that the United  States might be  a party in

any  capacity to any legal  proceeding. In fact,  at the time

the requests  were sent, no  complaint against any  party had

yet been filed.

          On  September 8,  1989, almost  a year  after these

requests  to the  Navy, Wilson  and other crew  members filed

suit against GEGS under  the Jones Act, 46 U.S.C.    688, for

injuries allegedly  suffered in the stranding  incident.  The

United  States received no notice of these suits, nor was the

United States,  or any of its departments  or agencies, named

as  a party.    On  April 2,  1990,  GEGS  moved for  summary

judgment,  arguing  that the  United  States  Navy owned  the

SEPTAR  on which Wilson and the others were injured, and that

therefore the  United  States was  the only  proper party  in

interest.   

          In response  to GEGS's motion for summary judgment,

Wilson filed a motion  on June 8, 1990, requesting  that GEGS

be  dismissed from  the suit  and that  the United  States be

substituted  as defendant.   On June  19, 1990,  the district

court  dismissed  GEGS from  the  suit  and granted  Wilson's

motion to amend his complaint.  

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                              3

          Though  the  district court  had granted  leave for

Wilson to amend  his complaint, more than two  months elapsed

and  Wilson had  still not  filed an  amended complaint.   On

September  10, 1990, two years to the day after the stranding

incident,  the  court  notified  Wilson  that  he  had  until

September  24, 1990, i.e., fourteen days from the date of the

order, to file an  amended complaint, or the action  would be

dismissed for lack of  prosecution.  It is important  to note

that when the court  issued this deadline, the United  States

had received no notice that it would be named a  party to the

suit and the amended complaint had not yet been filed.  Thus,

as far  as the  record indicates,  no statute  of limitations

issue was before the district court when it set the September

24, 1990, deadline.

          The amended complaint  was filed  on September  25,

1990,2 the  day after  the deadline  imposed by the  district
                     

court.  It alleged liability under the Public Vessels Act, 46

U.S.C.    781-90 and the Suits in Admiralty Act, 46 U.S.C.   

741-52.  Suits under these statutes  carry a two-year statute

of  limitations.   Along with  the amended  complaint, Wilson

filed  a motion  requesting the  court to  "relate back"  the

                    

2.  Wilson's  brief  misleadingly  states  that  the  amended
complaint  was filed on September 24, 1990.  The court docket
and the magistrate's report, however, both list September 25,
1990   as  the   filing  date   of  the   amended  complaint.
Furthermore, the  amended complaint included in  the Wilson's
appendix is date stamped  by the clerk's office "1990  SEP 25
AM 9:51."

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                              4

filing  date of the amended complaint to that of the original

complaint.   The  United  States  was  not  served  with  the

complaint until  November 16, 1990, fifty-two  days after the

amended complaint was filed.  On January 8, 1991,  the United

States  moved to  dismiss  the action  as  time-barred.   The

matter  was then  referred  to a  magistrate  who found  that

Wilson had indeed missed  the two-year statute of limitations

and had provided no basis for either relating back the filing

date of the amended  complaint, or for equitably tolling  the

limitations period.   On June  30, 1993,  the district  court

adopted the magistrate's findings and dismissed the action as

time-barred.  Wilson appeals from this ruling.

                             II.
                                

                          DISCUSSION
                                    

          Both  the Suits  in  Admiralty Act  and the  Public

Vessels Act  apply when a plaintiff  brings a "public-vessel-

related  suit  in  admiralty  against  the  United   States."

Justice v. United States, 6 F.3d 1474, 1475 (11th Cir. 1993).
                        

Causes  of action under both Acts "may be brought only within

two  years after the  cause of action  arises."   46 U.S.C.  

745.  A cause of action  "arises" under both Acts on the date

of injury.  See, e.g., McMahon v. United States, 342 U.S. 25,
                                               

27 (1951) ("[W]e think it  clear that the proper construction

of the  language used in the  Suits in Admiralty  Act is that

the period of  limitation is to be computed from  the date of

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                              5

the  injury.");  Justice, 6  F.3d at  1475 (stating  that the
                        

Public Vessels Act incorporates the statute of limitations of

the Suits in Admiralty Act).3

          There is  no dispute  that  the original  complaint

against  GEGS was timely filed,  nor can it  be disputed that

the  amended complaint  which  named the  United States  as a

party was first  filed more than two years  after the date of

injury.   Wilson  offers two  grounds  for arguing  that  the

amended complaint  should  nonetheless be  viewed as  timely.

First, Wilson argues that the two-year statute of limitations

should be  equitably  tolled.   Second,  he argues  that  the

amended complaint  should be deemed  to "relate back"  to the

date of filing of  the original complaint under Fed.  R. Civ.

P. 15(c).  We address these arguments in turn.

A.  Equitable Tolling
                     

          Federal  courts have allowed equitable tolling only

sparingly.  Irwin  v. Veterans  Admin., 111 S.  Ct. 453,  457
                                      

                    

3.  The  Public Vessels  Act incorporates  provisions of  the
Suits  in  Admiralty  Act,  "insofar  as  the  same  are  not
inconsistent"  with the Public Vessels Act.  46 U.S.C.   782.
This  includes the  two-year  statute of  limitations.   See,
                                                            
e.g., Justice, 6  F.3d at 1475; Favorite v.  Marine Personnel
                                                             
and  Provisioning, Inc., 955 F.2d  382, 385, 388-89 (5th Cir.
                       
1992) (applying Suits in Admiralty Act's two-year  limitation
in  case involving claims  under both the  Public Vessels Act
and Suits in Admiralty Act).  Wilson's brief alludes  vaguely
to the notion that the two-year statute of limitations in the
Public Vessels  Act operates in  a manner different  from the
statute of limitations  in the  Suits in Admiralty  Act.   We
have found  no  support  for  this argument,  either  in  the
statutes  themselves  or  in  the  cases  interpreting  these
statutes.

                             -6-
                              6

(1990).  For example, such tolling has been allowed where the

claimant actively pursued a timely yet defective pleading, or

where  the   complainant  was  tricked   by  his  adversary's

misconduct into allowing a deadline to pass.  See id. at 457-
                                                     

58 nn.  4 & 5 (compiling  cases).  Where, on  the other hand,

"`the  claimant   [fails]  to   exercise  due   diligence  in

preserving his[/her]  legal rights,' courts are  reluctant to

apply  principles of  equitable tolling  to extend  a federal

limitations period."   De Casenave v. United States, 991 F.2d
                                                   

11, 13 (1st Cir. 1993) (quoting Irwin, 111 S. Ct. at 458).
                                     

          In  this case,  Wilson's failure  at more  than one

juncture  to  exercise  due  diligence proves  fatal  to  his

request for equitable tolling.  First, Wilson asks us to toll

the statute of limitations because he purportedly was unaware

at the time he filed suit that the United States, rather than

GEGS, owned the SEPTAR on which  he was injured.  He  further

states that  GEGS's  delay in  filing  a motion  for  summary

judgment on  these grounds caused undue  delay in determining

the ownership of the SEPTAR, which in turn warrants equitable

tolling. 

          The magistrate's  report points out,  however, that

the ownership of the SEPTAR easily could and should have been

determined  through  routine  discovery.    Wilson offers  no

evidence to the contrary.  Nor does he allege any trickery or

other  questionable motive  on the  part of  GEGS.   In fact,

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                              7

there is no evidence in the record tending to  show that GEGS

was dilatory in  alerting the district court that  the United

States  owned the  SEPTAR.   Similarly,  there  is no  record

evidence showing  that Wilson  made any attempt  to ascertain

who owned the SEPTAR,  nor is there any evidence  that Wilson

pursued discovery on this,  or any other issue in  this case.

In sum,  nothing in  the record controverts  the magistrate's

finding that  the  issue of  ownership could  have been  made

known through  routine discovery procedures.  Thus, we see no

reason  to  toll  the statute  of  limitations  based on  the

actions  of  GEGS  in this  case.    Cf.  Favorite v.  Marine
                                                             

Personnel and Provisioning, Inc., 955 F.2d 382, 388 (5th Cir.
                                

1992)  (declining  to  equitably  toll  two-year  statute  of

limitations under the  Suits in Admiralty Act  and the Public

Vessels  Act  where  plaintiff  "waited to  bring  suit  only

because he believed he could sue . . . his private employer[]

under  the three-year  statute  of limitations  in the  Jones

Act").

          More  important  than Wilson's  initial  failure to

ascertain the identity of the SEPTAR's owner, however, is the

fact that Wilson  did learn  of the actual  ownership of  the
                     

SEPTAR  more   than  five   months  before  the   statute  of

limitations  expired, i.e.,  when GEGS  filed its  motion for

summary judgment.  Still, Wilson did not amend his complaint.

In fact, Wilson  filed the amended  complaint only after  the
                                                        

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                              8

district court threatened  to dismiss  the case  for lack  of

prosecution.   Wilson  offers no  reason  or excuse  for this

delay.    We  see  no basis  for  extending  the  exceptional

doctrine  of  equitable  tolling  to  a  party  who,  by  all

accounts, merely failed  to exercise his rights.   Cf. Puleio
                                                             

v.  Vose, 830  F.2d  1197, 1203  (1st  Cir. 1987)  ("The  law
        

ministers to  the  vigilant,  not to  those  who  sleep  upon

perceptible rights."), cert. denied, 485 U.S. 990 (1988).  In
                                   

sum, the  record before  us reflects  that  Wilson failed  to

exercise due diligence in pursuing his claim, and thus we see

no grounds for applying the doctrine of equitable tolling.

B. "Relation Back" Under Fed. R. Civ. P. 15(c)
                                              

          Wilson's claim under Fed. R. Civ. P. 15(c) fares no

better.    When  a plaintiff  amends  a  complaint  to add  a

defendant,  but  the  plaintiff  does so  subsequent  to  the
                                                    

running  of the  relevant statute  of limitations,  then Rule

15(c)(3) controls  whether the amended  complaint may "relate

back"  to the  filing of  the original complaint  and thereby

escape a timeliness objection.4 

                    

4.  Rule 15(c) states:

          An Amendment  of a pleading  relates back
          to the date of the original pleading when
            (1) relation back  is permitted by  the
          law   that   provides   the  statute   of
          limitations applicable to the action, or
            (2)  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

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                              9

          We begin by noting  that Wilson failed to  meet one

of Rule  15(c)(3)'s  mechanical requirements,  namely,  that,

within 120  days of  the filing  of the  original complaint,5

                    

          original pleading, or
            (3) the amendment  changes the party or
          the naming of  the party  against whom  a
          claim  is  asserted   if  the   foregoing
          provision  (2)  is satisfied  and, within
          the  period  provided  by  Rule  4(m) 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.

          The delivery or mailing of process to the
          United States Attorney, or  United States
          Attorney's  designee,   or  the  Attorney
          General  of  the  United  States,  or  an
          agency or  officer who would have  been a
          proper defendant if named,  satisfies the
          requirement of subparagraphs (A)  and (B)
          of this paragraph (3) with respect to the
          United  States or  any agency  or officer
          thereof to be brought  into the action as
          a defendant.

5.  Fed. R. Civ. P. 4(m), cited in Rule 15(c), states:

          If service  of the summons  and complaint
          is  not made upon  a defendant within 120
          days after the  filing of the  complaint,
          the  court, upon  motion  or on  its  own
          initiative after notice to the plaintiff,
          shall   dismiss    the   action   without
          prejudice as to  that defendant or direct
          that   service   be  effected   within  a
          specified  time;  provided  that  if  the
          plaintiff  shows  good   cause  for   the
          failure, the court shall extend  the time
          for  service  for an  appropriate period.

                             -10-
                              10

"the party to be brought in by amendment . .  . received such

notice of the institution  of the action that the  party will
                                        

not be  prejudiced in maintaining  a defense on  the merits."

(Emphasis supplied).  The record shows that the United States

received notice of  this action no earlier  than November 16,

1990, the date that it was served with the amended complaint.

          In arguing  that the United States  nonetheless had

adequate notice of the claim against GEGS, Wilson points only

to   his  counsel's  requests   for  radio   transcripts  and

investigation results from the Navy.  These requests occurred

some nine  months  prior to  the  institution of  the  action
                        

against GEGS.  Moreover,  the correspondence does not advert,

formally  or informally,  to  the institution  of any  action
                                             

against the United  States or any other  party.  Accordingly,

we find no  means in the  record to conclude that  the United

States ever received  timely notice of the institution of the

suit  against  GEGS.     Without  this  timely  notice,  Rule

15(c)(3)'s relation back provisions cannot apply.6

                    

          This  subdivision  does   not  apply   to
          service in a  foreign country pursuant to
          subdivision (f) or (j)(1).

6.  In  addition,  Wilson  cites  the  "identity-of-interest"
gloss on Rule 15(c) which we endorsed in Hernandez Jimenez v.
                                                          
Calero  Toledo,  604 F.2d  99, 102-03  (1st  Cir. 1979).   We
              
stated there  that "the institution  of the action  serves as
constructive notice of the action  to the parties added after
the limitations  period expired, when the  original and added
parties  are   so  closely  related  in   business  or  other
                                                             
activities that  it  is fair  to  presume the  added  parties
          
learned of the institution of the action shortly after it was

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                              11

          An additional requirement  for relation back  under

Rule  15(c)(3) is  that the  party to  be added  by amendment

"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."   There is no basis  for imputing

such  knowledge to the United States on the record before us.

          Finally,   the   Seventh   Circuit   has   recently

reiterated that 

          "amendment [of a complaint] with relation
          back is  generally permitted in  order to
          correct  a misnomer of  a defendant where
          the  proper  defendant is  already before
          the  court and  the effect  is  merely to
          correct the name under which he  is sued.
          But  a new  defendant cannot  normally be
          substituted or added  by amendment  after
          the statute of limitations has run."  

Worthington  v. Wilson,  8  F.3d 1253,  1256 (7th  Cir. 1993)
                      

(quoting Wood  v. Woracheck,  618 F.2d  1225, 1229 (7th  Cir.
                           

1980)).    Put  another   way,  Rule  15(c)(3)  "`permits  an

amendment to relate back  only where there has been  an error

made concerning the  identity of the  proper party and  where

that party is  chargeable with knowledge of the  mistake, but

                    

commenced."   Id.    To support his argument  that the United
                 
States  had such  constructive  notice in  this case,  Wilson
cites  only  the contract  between  the Navy  and  GEGS which
governed the  operation of the  SEPTARs.  Without  more, this
contract does not permit a  conclusion that the United States
and  GEGS were so closely related in business that the United
States  can be presumed to  have received notice  of the case
against GEGS, nor does any other record evidence support such
a conclusion.   

                             -12-
                              12

it  does not permit relation back  where, as here, there is a
                                                             

lack  of knowledge of the proper party.'"  Id. (quoting Wood,
                                                            

618 F.2d at 1230) (emphasis supplied).

          In this case, there  was no "mistake concerning the

identity of the proper party,"  as required by Rule 15(c)(3).

Rather, Wilson  merely lacked knowledge of  the proper party.

In other words, Wilson fully intended to sue GEGS, he did so,

and GEGS  turned out to be the wrong party.  We have no doubt

that Rule 15(c) is not designed to remedy such mistakes.

          To the extent that  Wilson raises any other issues,

he  does so  in  a perfunctory  manner,  with no  attempt  at

developed argumentation.   Such issues may  be deemed waived.

See Romero  Lama v. Borras, 16  F.3d 473, 481  n.12 (1st Cir.
                          

1994).

                             III.
                                 

                          CONCLUSION
                                    

          For  the  foregoing  reasons,  the  order  of   the

district  court dismissing Wilson's claims against the United

States is

          Affirmed.  Costs to appellees.
                                        

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                              13