
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-2370                     LUIS CARRERAS-ROSA AND FRANCISCO SOLER-ROSA,                               Plaintiffs, Appellants,                                          v.                              MELVIN ALVES-CRUZ, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Antonio Bauza-Torres on brief for appellants.            ____________________            Carlos Lugo-Fiol, Solicitor  General, Edda Serrano-Blasini, Deputy            ________________                      ____________________        Solicitor   General,  and   Edgardo  Rodriguez-Quilichini,   Assistant                                    _____________________________        Solicitor General, Department of Justice, on brief for appellee Melvin        Alves-Cruz.                                 ____________________                                   October 9, 1997                                 ____________________                 Per Curiam.    This   appeal   concerns   the   judgment                 __________            dismissing a 42 U.S.C.   1983 complaint as untimely under the            applicable Puerto  Rico statute of limitations.   We write to            clarify that, applying  Puerto Rico law, the  day plaintiffs'            action accrued should not be counted  as the first day of the            limitations  period and that the limitations period begins to            run on  the following day.  The prior decisions of this court            and the district court for Puerto Rico may have been somewhat            inconsistent  on  that   point.    Therefore  we   take  this            opportunity to resolve any uncertainty.                                    I.  Background                                    I.  Background                 Plaintiffs'   brother  was   shot  and  killed   by  the            defendants,  policemen  in  Puerto  Rico  on  May  19,  1994.            Plaintiffs learned of the death on May 20,  1994.  They filed            their   1983 complaint on May 22, 1995.                  Defendants moved to dismiss based on the applicable one-            year statute  of limitations,  Article 1868(2)  of the  Civil            Code,  P.R.  Laws  Ann.  tit.  31,     5298(2).    Plaintiffs            responded that  they did  not know of  their cause  of action            until they received an autopsy report in early May 1995.  The            district court rejected  plaintiffs' analysis and  determined            that the action accrued on May 20,  1994.  The district court            further  concluded that the complaint filed  on May 22, 1995,            was two days too late  and so entered judgment dismissing the            complaint.                                         -2-                 Plaintiffs moved  to vacate  the judgment  of dismissal,            arguing that the day  of accrual, May 20, 1994, should not be            counted, so that the 365-day limitations period ran from  May            21, 1994, until Saturday, May  20, 1995.  They further argued            that  their complaint  was  timely filed  on Monday,  May 22,            1995,  the  next court  day.   The  district  court summarily            denied that motion.                 This  appeal  followed.   The  parties'  briefs  did not            adequately  address the question  whether the day  of accrual            should be counted as the first day of the limitations period,            and so supplemental briefs were  ordered.  Now that the issue            has been fully  briefed, and as the facts  are fully laid out            upon the record, we are prepared to decide the appeal without            further argument.  See 1st Cir. Loc. R. 34.1(a)(2)(iii).                               ___                                   II.  Discussion                                   II.  Discussion                 The  limitation period for  filing this    1983 claim is            governed by the  applicable state statute of  limitations for            personal injury actions.  See Wilson v. Garcia, 471 U.S. 261,                                      ___ ______    ______            278-80  (1985).   In Puerto  Rico  the applicable  limitation            period for tort actions is one year.  Article 1868(2)  of the            Civil  Code, P.R.  Laws Ann.  tit. 31,    5298(2);  Torres v.                                                                ______            Superintendent of Police, 893 F.2d  404, 406 (1st Cir. 1990).            ________________________            One year  means 365 days,  or 366 days  in leap year.   Olivo                                                                    _____            Ayala v. Lopez  Feliciano, 729 F.Supp.  9, 10 (D.P.R.  1990);            _____    ________________                                         -3-            Yeinsip  v. Lufthansa German  Airlines, 725 F.Supp.  113, 115            _______     __________________________            (D.P.R. 1989).                 Although  the limitations period  is determined by state            law,  the date  of accrual  is a federal  law question.   The            accrual period  for a    1983 action "ordinarily  starts when            the plaintiff knows, or has reason to know, of  the injury on            which  the  action  is based."    Rivera-Muriente  v. Agosto-                                              _______________     _______            Alicea,  959  F.2d  349,  353  (1st  Cir.  1992).    In  this            ______            particular case, it is clear that the date of accrual  is May            20, 1994,  the  date on  which  plaintiffs learned  of  their            brother's death.                 The  question that  concerns  us  here  is  whether  the            limitations  period begins  on  the date  of  accrual or  the            following day.  In this    1983 case brought in Puerto  Rico,            Puerto Rico law governs the limitations period, including the            "closely  related  questions  of  . .  .  application."   See                                                                      ___            Wilson,  471 U.S.  at  269.   Thus,  when  the federal  court            ______            borrows the state statute of  limitations, so too the date on            which   the  limitations  period  starts  to  run  should  be            determined by the state law defining the "application" of the            limitations period.   Accordingly, we determine  the question            under Puerto Rico law.1                                  1                                            ____________________               1To the extent that Puerto  Rico law provides that the day               1            that an action accrues is not counted as the first day of the            limitations period,  it is  consistent with  Fed. R.  Civ. R.            6(a), which provides:                                         -4-                 The prior opinions of the Puerto Rico district court and            this court may have been somewhat inconsistent in determining            the first day of the limitations period.  The inconsistencies            appear  to stem from differing applications of two provisions            of Puerto Rico law and a Puerto Rico court rule.  Article 388            of the Political Code, P.R. Laws Ann. tit. 1,   72, provides:                      The time in which any act provided by law                      is to  be done is  computed by  excluding                      the first  day, and  including the  last,                      unless the  last day  is  a holiday,  and                      then it is also excluded.            Similarly, as relevant here, Rule 68.1 provides:                      In   computing   any   period   of   time                      prescribed or allowed  by these rules, by                      order  of the court, or by any applicable                      statute,  the  day of  the act,  event or                      default from which  the designated period                      of  time  begins  to  run  shall  not  be                      included. . . .            In contrast, Article  1869 of the Civil Code,  P.R. Laws Ann.            tit. 31,   5299, provides:                       The time  for  the  prescription  of  all                      kinds  of  actions,   when  there  is  no                      special provision to  the contrary, shall                      be  counted from  the day  on which  they                      could have been instituted.                                            ____________________                      In   computing   any   period   of   time                      prescribed  or  allowed  by  .  .  .  any                      applicable statute, the  day of the  act,                      event   or   default   from   which   the                      designated period  of time begins  to run                      shall not be included.            Therefore, the result here would  be the same whether federal            law or Puerto Rico law were applied.                                         -5-                 In  some  federal  cases, with  which  we  now disagree,            Article 1869 was thought to  prevail, so that the limitations            period  was held  to include  the first  day that  the action            could  have been  instituted.   See Ramirez  Morales v.  Rosa                                            ___ ________________     ____            Viera, 632 F.Supp. 491, 492 (D.P.R. 1986), aff'd, 815 F.2d 2,            _____                                      _____            4-5 (1st Cir.  1987); Olivo Ayala, 729 F.Supp.  at 10; Dennis                                  ___________                      ______            v. Figueroa, 642  F.Supp. 959, 961 (D.P.R. 1986);  de la Cruz               ________                                        __________            LaChapel v.  Chevere Ortiz, 637 F.Supp. 43, 44 (D.P.R. 1986);            ________     _____________            see also Altair  Corp. v. Pesquera de Busquets,  769 F.2d 30,            ________ _____________    ____________________            33 (1st Cir. 1985).  And in dicta this court has  equated the            date of accrual with the first day of the limitations period:            "[The]  date   of  accrual,  i.e.,  the  day   on  which  the                                         ____            limitations  clock begins to tick, is determined by reference            to federal  law."   Muniz-Cabrero v. Ruiz,  23 F.3d  607, 610                                _____________    ____            (1st  Cir. 1994) (precise dates  were not dispositive in that            case).                  However,  in other  cases,  with  which  we  now  agree,            Article 388 prevailed,  so that the limitations  period began            on the day  following the date of accrual.   See Salamanca v.                                                         ___ _________            American  Airlines, Inc., 920  F.Supp. 24, 26  (D.P.R. 1996);            ________________________            Conde v.  Beltran Pena, 793 F.Supp. 33,  35-36 (D.P.R. 1992);            _____     ____________            Yeinsip,  725 F.Supp.  at 115;  see  also Silva-Wiscovich  v.            _______                         _________ _______________            Weber  Dental Manufacturing Co., 835 F.2d  409, 409 (1st Cir.            _______________________________            1987).                                         -6-                 We  now  conclude  that  the  method  of  computing  the            limitations period followed in Salamanca,  Conde, and Yeinsip                                           _________   _____      _______            applies in this   1983 action filed in the district court for            Puerto Rico:                      the day in  which a tort cause  of action                      arises  counts  in   the  sense  that  it                      provides  the  starting   point  for  the                      computation of the  prescriptive term; it                      is  not,  however,  counted  within  that                      term.            Salamanca, 920 F.Supp. at 26.              _________                 We  reach this conclusion because, as the district court            in Salamanca noted,  the Puerto Rico  Supreme Court has  held               _________            that Article 388 (not counting  the first day) applies to the            statute of limitations  for tort actions, which  statute also            prescribes  this    1983 action.    E.g., Comunidad  Agricola                                                ____  ___________________            Bianchi v. Superior Court, 99 P.R.Dec. 366, 368 (1970); Ortiz            _______    ______________                               _____            v. American  Railroad Co.,  62 P.R.Dec.  171, 176-77  (1943);               ______________________            Cintron  v.  Insular  Industrial  &  Agricultural  Exposition            _______      ________________________________________________            Ass'n,  58 P.R.Dec.  821, 828  (1941); see  also Escalera  v.            _____                                  _________ ________            Andino, 76 P.R.Dec.  251, 254 (1954).  As  the district court            ______            in  Yeinsip  explained,   Article  1869   "is  a   suppletory                _______            [provision], to  be applied only  if no special law  over the            matter has  been adopted,"  and Article  388  "is a  specific            statute which regulates  the computation of legal  periods of            time," so that Article 388 controls.  725 F.Supp. at 115.                   Here,  applying   the  correct   rule  to   compute  the            prescriptive period,  plaintiffs' action  accrued on  May 20,                                         -7-            1994, but  the statute  of limitations did  not begin  to run            until the  next day,  May 21, 1994.   The  applicable 365-day            period  would have  expired on Saturday,  May 20,  1995, but,            excluding the  weekend days, the  limitations period extended            to  the  following  Monday.    It  follows  that  plaintiffs'            complaint was timely filed on Monday, May 22, 1995.                   Accordingly,  we vacate  the  judgment  of the  district                                  ______            court  dismissing  the  complaint   and  remand  for  further                                                     ______            proceedings.                                         -8-
