McIntosh v. Antonino

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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