      [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

         United States Court of Appeals
                    For the First Circuit


No. 01-1117

                        GERALD JONES,

                    Plaintiff, Appellant,

                              v.

                   RAYMOND BINETTE, ET AL.,

                    Defendants, Appellees.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Edward F. Harrington, U.S. District Judge]


                            Before

                      Boudin, Chief Judge,
               Selya and Lynch, Circuit Judges.




     Gerald Jones on brief pro se.
     David M. Moore, City Solicitor, and Elizabeth M. Sanning,
Assistant City Solicitor, on brief for appellees.




                      September 26, 2001
            Per Curiam.          We affirm the judgment substantially

for the reasons set forth in the district court's December

6,   2000   order    of   dismissal,          adding       only   the   following

comments.      In an effort to avoid the statute-of-limitations

bar, plaintiff for the first time on appeal invokes Mass.

Gen.    Laws   ch.   260,    §    32.         That    provision     permits    the

refiling, within one year, of a duly commenced action that

was dismissed "for any matter of form."                       It is a remedial

measure     "declar[ing]      that      where        the   plaintiff    has   been

defeated by some matter not affecting the merits, some

defect or informality, which he can remedy or avoid by a new

process, the statute [of limitations] shall not prevent him

from doing so."      Coffin v. Cottle, 33 Mass. (16 Pick.) 383,

386 (1835) (describing predecessor statute).

            We find this statute inapplicable here for at least

three     reasons.        First,        the    district       court     dismissed

plaintiff's initial action in part because he had filed no

opposition to defendants' motions to dismiss.                         That is not

a "matter of form."         See, e.g., Cumming v. Jacobs, 130 Mass.

419, 421 (1881) (holding that dismissal for failure to

prosecute did not so qualify, and noting that predecessor

statute "was not intended to encourage default or negligence


                                        -2-
 in the prosecution or conduct of a suit"); King v. Bradlees,

 Inc.,   1991    WL   204342,   at      *2   (Mass.   App.     Div.   1991)

 (concluding that dismissal because of counsel's failure to

 appear at pretrial conference was not matter of form); see

 also Loomer v. Dionne, 338 Mass. 348, 352 (1959) (noting, in

 course of finding statute applicable, that there was "no

 default    or   other   neglect   in      the   prosecution   ...    as   in

 Cumming").

             Second, the dismissal in the first action was also

 based in part on plaintiff's failure to state a claim.                That

 was an adjudication on the merits, as to which "principles

 of res judicata apply and [ch. 260, § 32] ... has no

 pertinence."      Liberace v. Conway, 31 Mass. App. Ct. 40, 45

 (1991).1

             Finally, plaintiff's second suit was not filed

 "within one year after the dismissal" of his first suit, as

 the statute requires.      We need not decide whether, in a case

 where an appeal has been pursued, that period ordinarily

 begins to run at the time the lower court acts or at the


    1   There is no suggestion that the district court declined
to exercise supplemental jurisdiction over any pendant state law
claims--a type of dismissal that is deemed a "matter of form."
See, e.g., Liberace, 31 Mass. App. Ct. at 42-45. Plaintiff's
first complaint did not purport to contain any such claims. And
the court's dismissal, in any event, was with prejudice across
the board.

                                     -3-
time the appellate court does so.   Here, plaintiff filed no

timely notice of appeal in his first suit and no timely

motion to extend the time for appeal.     The one-year period

thus commenced, at the latest, on the date the appeal period

expired and the judgment became final--well over one year

before his second action was filed.

         Affirmed.   See Loc. R. 27(c).




                            -4-
