
USCA1 Opinion

	




                            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).                                          19          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.          ________                                          20
