
USCA1 Opinion

	




          June 9, 1994          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-2311                                            DENIS MARTIN LINEHAN,                                Plaintiff, Appellant,                                          v.                                 HARVARD UNIVERSITY,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                              Torruella, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Denis M. Linehan on brief pro se.               ________________               Allan A. Ryan, Jr., on brief for appellee.               _________________                                  __________________                                  __________________                      Per Curiam.  Plaintiff appeals the district court's                      __________            dismissal   of  his  diversity   suit  as  time-barred  under            Massachusetts three-year statute  of limitations for personal            injury actions.  The complaint alleges that between March and            May, 1987, while plaintiff was enrolled in a graduate studies            program  at Harvard  Law School,  defendant subjected  him to            sonic  abuse from  a  remote controlled  device installed  in            close proximity to his dormitory room.  Plaintiff claims that            defendant's wrongful  actions  were motivated  by a  vendetta            that  had  its origin  in an  employment dispute  between the            plaintiff and University College Cork in Ireland.                      The complaint was filed  on December 10, 1992, more            than five years after the dates of alleged injury.  Plaintiff            argues, however,  that the three-year statute  of limitations            is  tolled by (1) fraudulent concealment,  or (2) his absence            from  the  jurisdiction,  or  (3) the  disability  caused  by            defendant's alleged tort.  He also argues (4) that his claims            survive under the state's six-year statute of limitations for            breach  of  contract  claims,1  and  (5)  that  defendant  is            estopped  from  asserting  the  limitations  bar  by  certain            judgments of the  Irish courts.  We  reject these contentions            for the following reasons.    (1)     A  defendant's  alleged                                            ____________________            1.   Plaintiff  reportedly completed  his course of  study at            Harvard,   obtaining  an   LL.M.   degree   in  June,   1987.            Nevertheless,  he  alleges  interruptions  in  contracts  for            "studentship," accommodation, medical and linen services.                                         -2-            fraud may toll  the limitations period  only if it  "conceals            the cause  of . . .  action from the knowledge  of the person            entitled to bring it . . . . "  Mass. Gen. L. ch. 260,    12.            Plaintiff's complaint asserts, however,  that he was aware of            the alleged sonic abuse  and his physical injury at  the time            it  occurred.  His theory that Harvard is responsible for the            alleged  tort  is  built   almost  entirely  on  actions  and            statements by Harvard personnel of which he was aware in 1986            and  1987.   In addition,  as early  as May,  1987, plaintiff            sought  legal assistance  to litigate  or mediate  this claim            against  Harvard.  "[A] cause of action is not concealed from            one who has  knowledge of the facts  that create it . .  . ."            Riley  v. Presnell, 409 Mass.  239, 251, 565  N.E.2d 780, 787            _____     ________            (1991) (citation omitted); see also Bowen v. Eli Lilly & Co.,                                       ________ _____    _______________            408  Mass. 204, 205, 557 N.E.2d 739, 740 (1990) (holding that            a  cause of action accrues  when the plaintiff  has notice of            the basic fact  that he  has been harmed  by the  defendant's            conduct, regardless of an ignorance of the particulars).                        (2)   A  plaintiff's voluntary  departure  from the            state after the accrual of his cause of  action does not toll            the statute of  limitations.  Cf. Mass. Gen. L.  ch. 260,   9                                          ___            (a  defendant's  absence may  toll  the  limitations period);                ___________            Walsh v.  Ogorzalek, 372  Mass. 271,  361 N.E.2d  1247 (1977)            _____     _________            (tolling  for non-resident  defendants  is limited  to  those            defendants not  amenable to  service  during their  absence).                                         -3-            The  plaintiff's residence  in a  foreign country  during the            relevant period does             not qualify as a disabling  factor unless the foreign country            was then  at war with the  United States.  Mass.  Gen. L. ch.            260,   8.                       (3)   We know of  no case, and  plaintiff has cited            none, which holds that  a plaintiff's alleged physical injury            alone tolls  the Massachusetts  statute of limitations.   The            state recognizes  mental illness  as a disabling  factor, but            plaintiff does not  claim a  period of insanity.   See  Mass.                                                               ___            Gen. L.  ch. 260,   7.   In any event,  the complaint alleges            facts which  show that  during the relevant  period plaintiff            understood his  legal rights, employed counsel,  and actively            pursued legal claims relating to  his disability in the Irish            courts.  His injury  is thus not one recognized  as disabling            for  purposes  of tolling  the  statute.   See  McGuinness v.                                                       ___  ___________            Cotter,  412  Mass. 617,  624 n.9,  591  N.E.2d 659,  663 n.9            ______            (1992) (holding  that a  mental disability tolls  the statute            when it prevents the  plaintiff from "comprehending his legal            rights,"  or pursuing a lawsuit); Pederson v. Time, Inc., 404                                              ________    __________            Mass.  14, 16, 532 N.E.2d 1211, 1212 (1989) (same under prior            wording of the statute).                       (4)  Under Massachusetts law, the  determination of            whether the  contract or tort statute  of limitations applies            is controlled by the "essential nature of the party's claim."                                         -4-            Royal-Globe  Ins.  Co. v.  Craven,  411 Mass.  629,  636, 585            ______________________     ______            N.E.2d 315,  319 (1992).  A  pivotal factor is  the nature of            the acts upon which  the defendant's liability is predicated.            Compare             _______            Royal-Globe Ins. Co., 585 N.E.2d at 319-20 (holding that suit            ____________________            is in  contract where liability is  predicated on defendant's            breach  of a  contract to  indemnify for  injuries physically            caused by  another) with Thomas v.  Massachusetts Bay Transp.                                ____ ______     _________________________            Auth., 389 Mass. 408, 450 N.E.2d 600 (1983) (holding the suit            _____            is  in  tort where  liability  is  predicated on  defendant's            physically  injurious  acts,   despite  collateral   contract            between the parties).   The gravamen of plaintiff's complaint            is  that  defendant  engaged  in  physically  injurious  acts            against him.   Although he alleges  incidental contracts that            impose other obligations, the  personal injury he claims does            not arise from those  contracts.  Accordingly, the three-year            statute of limitations governs this action.                      (5)   The purported  judgment of the  Irish Supreme            Court awarding to plaintiff a pension from University College            Cork is irrelevant  to the  issues before us.2   Harvard  was            not  a  party to  the alleged  Irish  litigation.   The Irish            court's  alleged refusal  to issue a  summons for  service on                                            ____________________            2.  We   do  not   reach  questions   of   the  authenticity,            completeness  or  timeliness   of  plaintiff's  reply   brief            submission of  xerox copies  of the purported  Irish judgment            and related  documents, because plaintiff's   description  of            the litigation shows its irrelevancy to the issues at hand.                                          -5-            Harvard because of "forum conveniens", does not, as plaintiff            urges,  evidence  a  determination   by  that  court  of  the            Massachusetts   limitations  question.      We  perceive   in            plaintiff's  arguments  no  reason  for  deviating  from  the            general rule that binds only             parties and  their privies to  a final  judgment.   Moreover,            when different claims  are asserted in a subsequent action, a            party to the first  action is estopped only as to issues that            were actually  litigated, actually determined,  and essential            to the first judgment.  See generally Miles v. Aetna Casualty                                    _____________ _____    ______________            & Sur.  Co., 412 Mass. 424,  426, 589 N.E.2d 314,  316 (1992)            ___________            (applying the  general rule  as stated  in Montana  v. United                                                       _______     ______            States, 440 U.S. 147, 153 (1979) and the Restatement (Second)            ______            of Judgments   27 (1982)).                          Finally, we see no  merit in plaintiff's claim that            the district court denied  him an opportunity to be  heard in            opposition  to defendant's  motion to  dismiss.   By district            court  rule, plaintiff  had  the  right  to  file  a  written            opposition to the  motion and  to request  oral argument.  D.            Mass. R. 7.1(B)(2),  (D).   He acknowledges that  he did  not            exercise  these  rights  during  the  seven  weeks  following            service  of the  motion (six weeks  following his  receipt of            it).  Instead, he argues that six weeks was too short (and by            implication  so was the 14-day period  provided by the rule),            yet  he offers no satisfactory  reason why he  also failed to                                         -6-            exercise his right  to request  an enlargement of  time.   D.            Mass.  R. 7.1(B)(2).  We do not credit plaintiff's attempt to            shift responsibility to the defendant and the court to insure            that  he  learns of  his  rights  under published  procedural            rules.   Plaintiff allegedly  holds advanced degrees  in law,            including two from institutions in this country.  His "pro se            status does not absolve  him from compliance  with . . .  the            district  court's  procedural   rules."     FDIC  v.   Anchor                                                        ____       ______            Properties, 13 F.3d 27, 31 (1st Cir. 1994).3            __________                      The posture of  this case  does not  require us  to            address other apparent infirmities in plaintiff's complaint.                       Accordingly, the judgment below is affirmed.                                                         ________                                            ____________________            3.  Though  not necessary  to our  disposition, we  note that            plaintiff suffered no prejudice from  his failure to file  an            opposition.    Plaintiff's complaint,  which  was before  the            court, predicted the limitations  issue and included the same            responsive arguments  which plaintiff  raises on appeal.  The            court  did  not  enter   a  default  judgment,  but  properly            considered the merits of the motion in light of the papers on            file.   See Mullen  v. St. Paul  Fire & Marine  Ins. Co., 972                    ___ ______     _________________________________            F.2d 446, 451 (1st Cir. 1992).                                               -7-
