
USCA1 Opinion

	




          March 29, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1873                                 A. GREER EDWARDS, JR.,                                Plaintiff, Appellant,                                          v.              FIRST AMERICAN TITLE INSURANCE COMPANY OF NEVADA, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Joseph A. DiClerico, U.S. District Judge]                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            A. G. Edwards, Jr. on brief pro se.            __________________            Richard B.  Couser and Orr and  Reno, P.A. on  brief for appellees            __________________     ___________________        First  American  Title Insurance  Company,  John  Hancock Mutual  Life        Insurance  Company,  Harold  Pearson  III,  William  Gordon,  John  G.        McElwee, Stephen Brown, Thomas L. McKiernan and Arthur Duncan.            Martha  V. Gordon  and Nelson,  Kinder,  Mosseau  & Gordon,  PC on            _________________      ________________________________________        brief for appellees Prince A. Hawkins and Hawkins, Rhodes & Sharp.                                 ____________________                                 ____________________                                 Per  Curiam.   Plaintiff-appellant  A.  G. Edwards,                      ___________            Jr.,  has brought a pro  se appeal from  the district court's            judgment dismissing Edwards'  claims against nine defendants:            the John Hancock Mutual  Life Insurance Co. ("John Hancock"),            six John Hancock employees,  Nevada attorney Prince  Hawkins,            and the Nevada law firm of Hawkins,  Rhodes & Sharp.  Edwards            also appeals  from the  district court's  ruling transferring            Edwards' claims against  the remaining  defendant, the  First            American  Title  Insurance  Co.  ("First  American"), to  the            District of Nevada on grounds of  convenience under 28 U.S.C.              1404(a).                      In the 1970's the  Saval Ranching Co. ("Saval"), of            which Edwards  was part owner and later  sole owner, borrowed            money  from  John Hancock.    As  security, Saval  gave  John            Hancock deeds  of trust to  two commercial cattle  ranches in            Nevada owned  by Saval.   In  1985, at  a  time when  Edwards            resided in Massachusetts, John Hancock foreclosed on  Saval's            ranches.   John Hancock  foreclosed  through First  American,            which was John  Hancock's trustee  on the deeds  of trust  to            Saval's ranches.   Hawkins and his law firm  represented John            Hancock in the foreclosure proceedings.                        The  deeds  of trust  to Saval's  ranches expressly            included the mineral, oil, and gas rights pertaining to those            ranches.   In  preparing for  the foreclosure  sale, however,            First American  excluded these  mineral, oil, and  gas rights            from the published description of the  properties to be sold.            Although he could not bid on the properties, Edwards attended            the  August 15, 1985 Nevada  foreclosure sale.   At that sale            the United  States government  purchased  the properties  and            acquired  the  release  of  John Hancock's  interest  in  the            properties.  Edwards subsequently moved from Massachusetts to            New Hampshire.                        The  U.S. then  filed suit  against Edwards  in the            federal  district  court  in  Nevada to  recover  a  $600,000            deficiency.  The Nevada  court ruled on January 5,  1988 that            First American  had  violated applicable  Nevada  foreclosure            statutes by excepting  the mineral, oil, and  gas rights from            the  description  of  the  properties,  and  invalidated  the            foreclosure.   In 1989, Edwards  and the U.S.  entered into a            settlement agreement  by which  the U.S. transferred  all its            interest in the  properties to Edwards in return for a sum of            money.                      On  January 25,  1991,  Edwards filed  suit in  the            District Court for the District of Massachusetts against John            Hancock.   The suit, which included claims for negligence and            for breach of contract, sought damages for the underinclusive            property description  in the notices of  the foreclosure sale            of the Saval ranches.   The district court dismissed Edwards'            negligence claim  as time-barred, and  dismissed his contract            claim  on the  merits.   On  September  4, 1992,  this  court                                         -3-            affirmed the  dismissal of the negligence  claim, vacated the            dismissal  of the  contract claim,  and remanded  for further            proceedings.  Edwards  v. John Hancock Mutual  Life Ins. Co.,                          _______     _________________________________            973 F.2d 1027 (1st Cir. 1992).                      Edwards filed the instant  pro se lawsuit on August            12,  1991 in  the  District Court  for  the District  of  New            Hampshire.  His original  complaint named only First American            and sought damages  for First  American's alleged  negligence            and breach  of contract in carrying out the foreclosure sale.            On June 2, 1992, Edwards filed an amended pro se complaint in            which he  added  the other  nine  defendants and  also  added            additional grounds for relief.                        On March 23, 1993, the district court (1) dismissed            Edwards'  claims against  the eight  non-corporate defendants            for  lack  of personal  jurisdiction  in  New Hampshire;  (2)            dismissed Edwards'  claims against  John Hancock in  light of            Edwards'  pre-existing  suit  against  John  Hancock  in  the            District  of  Massachusetts;  and  (3)  transferred  Edwards'            claims  against  First American  to  the  District of  Nevada            pursuant to  28 U.S.C.    1404(a).   Edwards appeals,  having            been  issued a  Fed.  R. Civ.  P.  54(b) certificate  by  the            district court.                     Claims Against the Eight Non-Corporate Defendants                   _________________________________________________                                         -4-                      The  district  court   dismissed  Edwards'   claims            against the  eight non-corporate defendants --  i.e., the six            John  Hancock  employees  (Pearson, Gordon,  McElwee,  Brown,            McKiernan, and Duncan), Nevada attorney Hawkins, and Hawkins'            law  firm -- on the ground that New Hampshire lacked personal            jurisdiction  over any of them under  the New Hampshire long-            arm statute, N.H. Rev. Stat. Ann.   510:4.                        Although Edwards appears to concede in his brief on            appeal  that New Hampshire  lacked personal jurisdiction over            these eight defendants, in his reply brief he insists that he            did not mean to  waive that issue.  Assuming,  arguendo, that            the issue is properly before us, we would affirm the district            court's  ruling on this point  for the reasons  stated in the            district  court's March  23,  1993 order.    Edwards did  not            adequately allege that any of  these non-corporate defendants            --   as  distinguished  from   their  corporate  employer  or            principal,   John  Hancock  --   transacted  business,  owned            property, or committed a tortious act in New Hampshire within            the meaning of the New Hampshire  long-arm statute, N.H. Rev.            Stat. Ann. 510:4.  There is no dispute  that the alleged tort            --  underinclusive  description   of  Saval's  properties  in            connection  with the  1985  foreclosure sale  -- occurred  in            Nevada  and that  Edwards  resided in  Massachusetts at  that            time.   Since  this is not  a continuing tort,  the fact that            Edwards  moved to  New Hampshire  after the  foreclosure sale                                         -5-            does not mean that the alleged tort occurred, in part, in New            Hampshire.                         Edwards  argues that  instead  of dismissing  these            claims, the district court should have transferred the claims            to another forum which  would have personal jurisdiction over            these eight non-corporate defendants.  The district court did            not deal with this point in its opinion.                      Edwards  bases his  argument on  28 U.S.C.    1631,            which provides that whenever  a "court finds that there  is a            want  of jurisdiction,  the  court shall,  if  it is  in  the            interest of justice, transfer such action  . . . to any other            such court in which the action  . . . could have been brought            at the time it was filed."  There is no question in this case            that the  district court  had jurisdiction over  the subject-            matter of this action; it was personal jurisdiction  that was            lacking.    Some  courts   and  commentators,  relying  on  a            construction  of  the legislative  history  of    1631,  have            suggested  that a court may  transfer an action  under   1631            only when  it lacks subject-matter jurisdiction, not personal                                                             ___            jurisdiction.   See, e.g., Levy v. Pyramid Co. of Ithaca, 687                            ___  ___   ____    _____________________            F.  Supp. 48, 51 (N.D.N.Y. 1988), aff'd, 871 F.2d 9 (2nd Cir.                                              _____            1989);  15 Wright,  Miller,  & Cooper,  Federal Practice  and            Procedure   3842, at 323 (2nd ed. 1986).   By contrast, other            courts  -- pointing to the  language of    1631 itself, which            speaks of "jurisdiction" and  makes no further distinction --                                         -6-            have  held that     1631 does  permit  a transfer  where  the            tranferor court lacks personal jurisdiction.  See, e.g., Ross                                                          ___  ___   ____            v. Colorado Outward  Bound School, Inc., 822  F.2d 1524, 1527               ___________________________________            (10th   Cir.   1987);  United   States   v.  American   River                                   _______________       ________________            Transportation, Inc., 150 F.R.D. 587  (C.D. Ill. 1993).  This            ___________________            court has yet to rule on the issue.                          We  need not  do so  here.   Regardless  of whether            transfer  is sought under    1631, under 28  U.S.C.   1404(a)            (which provides  that "[f]or  the convenience of  parties and            witnesses, in the interest  of justice, a district  court may            transfer any civil  action to any other district  or division            where  it might  have been  brought"), or  under 28  U.S.C.              1406(a)  (which  provides that  "[t]he  district  court of  a            district in which  is filed a case laying venue  in the wrong            division  or district  shall  dismiss, or  if  it be  in  the            interest of justice,  transfer such case  to any district  or            division in  which  it could  have been  brought"), we  would            affirm  the denial  of  a transfer  because  all of  Edwards'            claims against  the eight non-corporate defendants were time-            barred,  under  all statutes  of  limitations  that might  be            applicable,  at the time he filed those claims in the instant            case.  A federal court may  not transfer an action to another            court under   1631 if the action was time-barred  at the time            it was  filed.  See, e.g.,  Billops v. Department  of the Air                            ___  ___    _________________________________            Force,  725  F.2d 1160,  1163  (8th Cir.  1984).   Similarly,            _____                                         -7-            transfer  under either   1404(a) or   1406(a) would not serve            the  interests of justice where the action was time-barred at            the time it was filed.   See, e.g., McTyre v. Broward General                                     ___  ___   ______    _______________            Medical Center, 749 F.Supp. 102, 105-09 (D.N.J. 1990).            ______________                      Edwards asserted  six causes of action against some            or all of these eight defendants:  (1) negligence; (2) breach            of  contract; (3) breach of an implied covenant of good faith            and fair dealing; (4)  violation of RICO, 18 U.S.C.     1961-            68;  (5) violation of  the Massachusetts  Consumer Protection            Act, Mass. Gen. Laws  93A; and (6) deceptive  trade practices            under  Nevada statutes.  In Edwards' prior appeal arising out            of the similar action  Edwards brought in Massachusetts, this            court  has already  ruled that Edwards'  cause of  action for            negligence was  time-barred under  Massachusetts law  at some            time before  January 1991, i.e., before  Edwards filed either            the complaint or the amended complaint in the instant action.            Edwards, supra, 973 F.2d at 1029-30.            _______  _____                      All  other possible statutes of limitations for any            of Edwards' claims -- whether under Nevada, Massachusetts, or            New Hampshire law --- are six years or  less.  The applicable            limitations period  for a negligence  action is six  years in            New  Hampshire, N.H. Rev. Stat. Ann. 508:4, I, and four years            in  Nevada, Nev. Rev. Stat.    11.190, 2(c).   The applicable            limitations period  for a contract  action, or an  action for            breach of an implied covenant of  good faith, is six years in                                         -8-            Massachusetts, Mass. Gen. Laws c. 260,   2; six  years in New            Hampshire, N.H. Rev. Stat.  Ann. 508:4, I; and either  six or            four years in Nevada,  Nev. Rev. Stat.   11.190,  1(b), 2(c).            The limitations period for a civil RICO action is four years.            Agency Holding  Corp. v. Malley-Duff &  Associates, Inc., 483            _____________________    _______________________________            U.S. 143, 156 (1987).   The limitations period for  an action            under Mass. Gen. Laws c. 93A is four years.   Mass. Gen. Laws            c. 260,   5A.   Finally, Edwards has not  disputed appellees'            assertion  that the  limitations period  for an  action under            Nevada  deceptive trade  practices  statutes is  four  years.            Nev. Rev. Stat.    598A.220, 11.220.                        This court already has  strongly suggested, if  not            expressly held,  that under Massachusetts law  Edwards' cause            of  action  for  negligence  accrued   by  the  time  of  the            foreclosure sale, i.e., by August 15, 1985.   Edwards, supra,                                                          _______  _____            973 F.2d at 1029-30.   Appellees urge that this  accrual date            should govern all of Edwards' causes of action.                      Edwards has  given no reason,  and we see  none, to            think  that his  contract-based  claims  and  his  tort-based            claims should be governed by different accrual dates.  In his            brief  on appeal,  moreover, Edwards  expressly accepted  the            August 15, 1985 accrual date.                        In   his  reply   brief,  Edwards   does  belatedly            challenge this  accrual date.   However, his  only challenge,            whether  as  a matter  of  Massachusetts,  New Hampshire,  or                                         -9-            Nevada law, is his  contention that his causes of  action did            not  accrue  until mid-1990,  when  the  U.S. Forest  Service            allegedly cancelled  his grazing permit for  livestock on his            Saval ranches.  He alleges that this cancellation "[d]irectly            deriv[ed]" from the defective foreclosure sale and caused him            substantial economic harm.                        This argument has no  merit because there has been,            and can be, no dispute that Edwards was on notice of possible            substantial injury  as of  the August 1985  foreclosure sale,            when the underinclusive property description may have  caused            the Saval ranches to  be sold for a lower price.   A cause of            action  accrues when  a plaintiff  has "knowledge,  actual or            attibuted, of  both harm to it  and the likely  cause of such            harm, . . . sufficient to stimulate further inquiry which was            likely to alert it to a cause of action against a defendant."            Hanson  Housing Authority  v. Dryvit  System, Inc.,  29 Mass.            _________________________     ___________________            App. Ct. 440, 446,  560 N.E.2d 1290, 1294 (1990),  rev. den.,                                                               ___  ___            409  Mass. 1101,  565 N.E.2d  792  (1991).   The fact  that a            plaintiff subsequently  suffers some additional harm that may            be traced to the same likely cause does  not delay accrual of            the cause  of action.   Id.  ("It  is not  required that  the                                    __            extent  of injury  be  known before  accrual  of a  cause  of            action");  Rowe v. John Deere,  130 N.H. 18,  21-23, 533 A.2d                       ____    __________            375, 376-78  (1987).  See  Sorenson v.  Pavlikowski, 94  Nev.                                  _____________     ___________            440, 443-44, 581 P.2d 851, 853-54 (1978).                                           -10-                      Accordingly, with an accrual  date of no later than            August 15, 1985, the latest Edwards could have brought any of            his claims  against any  of these  defendants was  August 15,            1991.    Edwards'   amended  complaint  naming   these  eight            defendants was not filed until June 2, 1992.                      Although  Edwards'  original  complaint  was  filed            three  days before August  15, 1991, it  did not name  any of            these defendants.  Edwards has not argued that the provisions            of Fed. R. Civ.  P. 15(c) -- setting forth  the circumstances            under which claims raised in an  amended complaint can relate            back  to the time the  original complaint was  filed -- apply            here.   Even if he had  raised this argument --  we note that            both  appellees'  briefs  do   discuss  this  point,  despite            Edwards' failure to raise it -- we see no merit in it.                        Fed. R. Civ. P. 15(c)(1) permits relation back when            "relation  back is  permitted by  the law  that  provides the            statute  of limitations applicable  to the action."   None of            the statutes of limitations  which may possibly apply to  any            of Edwards' claims contains such a provision.                      Fed. R. Civ. P. 15(c)(2) permits relation back when            "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 original  pleading."  This            provision  governs the assertion of new  legal theories in an            amended  complaint,  and  does  not apply  when  the  amended                                         -11-            complaint  seeks  to  add  new  parties.    See  Jacobson  v.                                                        _____________            McIlwain, 145 F.R.D. 595, 603 (S.D. Fla. 1992).            ________                      Finally, Fed. R. Civ. P. 15(c)(3) permits  relation            back  of an  amendment  adding  new  parties when  the  claim            asserted arose out of  the conduct set forth in  the original            pleading,  as required  by  Rule 15(c)(2),  "and, within  the            period  [120 days] provided by  Rule 4(j) 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."   Edwards  meets  neither  of these  latter  two            requirements here.                        Edwards has  said nothing  to indicate that  any of            the  eight  non-corporate  defendants  named  in  the amended            complaint  received notice  of the original  complaint within            120 days of its filing.  Nor is there anything  in the record            to  suggest  that Edwards  made  some  mistake regarding  the            proper party to  be sued,  rather than merely  deciding at  a            later  time to  sue  further  parties  in addition  to  First            American.   Indeed, Edwards  himself acknowledged as  much in            his memorandum in support  of his motion to file  the amended            complaint, when he stated, "The plaintiff has further studied                                         -12-            his  cause of  Action  in  this  matter  and  has  found  the            justification to  enlarge  his Complaint  by adding  relevant            supplementary  averments  and  by naming  related  additional            appropriate Defendants."                         Edwards argues in his brief on appeal that after he            filed his  original complaint, and  also after  he filed  his            amended complaint, the clerk of the district court improperly            delayed  issuing a  summons as  required by  Fed. R.  Civ. P.            4(a).    This  impropriety,  according  to  Edwards,  delayed            service of process upon the defendants.                        We need not  consider this matter  because Edwards'            contention, even if true, is irrelevant to our decision.  All            of Edwards' claims against the eight non-corporate defendants            were  time-barred  before  June  2, 1992,  when  the  amended            complaint naming these defendants  was filed.  Any subsequent            delay in  service of process on  these defendants, therefore,            was beside the  point.   Even if somehow  the district  court            clerk  improperly  prevented  Edwards  from  providing  these            defendants with timely notice  of his original complaint, and            those  circumstances  somehow  satisfied   Fed.  R.  Civ.  P.            15(c)(3)(A) (points which are by  no means clear), this would            avail Edwards  nothing, since we have already  held that Fed.            R. Civ. P. 15(c)(3)(B) was not satisfied.                               Claims Against John Hancock                            ___________________________                                         -13-                      As we have said, on January 25, 1991 -- well over a            year  before  the filing  of  his  amended  complaint in  the            instant case  adding claims  against John Hancock  -- Edwards            filed a similar suit  in the District Court for  the District            of Massachusetts, naming John  Hancock as the only defendant.            Edwards' Massachusetts lawsuit, like the instant suit, sought            to recover damages,  based on counts of negligence and breach            of contract, for  the underinclusive property description  in            the notices of the foreclosure sale of the Saval ranches.                      The    district   court   found   that   both   the            Massachusetts lawsuit  and  Edwards' instant  claims  against            John Hancock involved  the same issues and  the same parties.            Accordingly,  the  district court  dismissed  Edwards' claims            against  John  Hancock,  citing  the   "generally  recognized            doctrine of federal comity which permits a district  court to            decline   jurisdiction  over  an   action  when  a  complaint            involving the same parties and issues has  already been filed            in another district."  Pacesetter Systems, Inc. v. Medtronic,                                   _______________________     __________            Inc., 678 F.2d 93, 94-95 (9th Cir. 1982).  At the time of the            ___            district  court's order,  apparently Edwards'  contract claim            remained  pending in  the  Massachusetts  suit, although  his            negligence  claim had  been  dismissed as  time-barred.   See                                                                      ___            Edwards, supra, 973 F.2d 1027.            _______  _____                      Edwards does not appear to challenge this  district            court  ruling in  his  brief on  appeal.   In  light of  "the                                         -14-            settled appellate rule  that issues  . .  . unaccompanied  by            some effort  at  developed argumentation  .  . .  are  deemed            waived," United States v. Zannino, 895 F.2d 1, 17 (1st Cir.),                     _____________    _______            cert. denied, 494 U.S. 1082 (1990), we will not consider this            ____________            issue.                           Claims Against First American                           _____________________________                      This court lacks appellate jurisdiction to consider            Edwards' appeal from the district court's ruling transferring            Edwards'  claims  against defendant-appellant  First American            Title  Insurance Co. to the District of Nevada pursuant to 28            U.S.C.    1404(a).  It  is well-settled that  such a transfer            order under   1404(a) is an interlocutory order and therefore            is not appealable as a final judgment.  Codex Corp.  v. Milgo                                                    ___________     _____            Electronic Corp., 553 F.2d 735, 737 (1st Cir.), cert. denied,            ________________                                ____________            434  U.S. 860  (1977).   Since  Edwards  has not  obtained  a            certificate  for  interlocutory  appeal  under  28  U.S.C.               1292(b), we lack jurisdiction over this aspect of his appeal.                      In any event, even if we had jurisdiction, we would            affirm the  district court's transfer ruling  for the reasons            stated  in the district court's  March 23, 1993  order.  Only            under  unusual  circumstances  would  we  disturb a  district            court's exercise of discretion in ordering a transfer under              1404(a).  Id.   Certainly no  such circumstances exist  here,                      __                                         -15-            given the undisputed  facts that  the events  giving rise  to            Edwards'  claims  occurred  primarily  in  Nevada, the  Saval            ranches are  in Nevada, and relevant  documents and witnesses            will be readily available in Nevada.                                 Conclusion                                 __________                      We  affirm the district  court's denial of Edwards'            motion for reconsideration.  As the district court stated, if            viewed as  a Fed. R. Civ.  P. 59(e) motion to  alter or amend            the judgment, the  motion was untimely because  it was served            more than ten days after entry of judgment.  Fed.  R. Civ. P.            59(e).   If viewed as  a Fed.  R. Civ. P.  60(b) motion,  the            motion stated no possible basis for relief from judgment.                      We have considered all of Edwards'  other arguments            and find them meritless.                      The request of Hawkins  and Hawkins, Rhodes & Sharp            that sanctions, including attorneys' fees, be awarded against            Edwards is denied.                       ______                      The judgment of the district court is affirmed.                                                            ________                                         -16-
