
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                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.                                          I.                                          __                       FACTUAL BACKGROUND AND PRIOR PROCEEDINGS                       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.                                         -2-                                          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.                                           -3-                                          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."                                         -4-                                          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.                                         II.                                         ___                                      DISCUSSION                                      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                                         -5-                                          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,                                         -7-                                          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                                                               _____                                         -8-                                          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                                         -9-                                          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                                         -11-                                          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.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      For  the  foregoing  reasons,  the  order  of   the            district  court dismissing Wilson's claims against the United            States is                      Affirmed.  Costs to appellees.                      _________  ___________________                                         -13-                                          13
