
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-2102                                MIGUEL DE CASENAVE AND                         MARIA ANGELICA MORALES DE CASENAVE,                               Plaintiffs, Appellants,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                     [Hon. Carmen C. Cerezo, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                      Aldrich and Coffin, Senior Circuit Judges.                                          _____________________                                 ____________________            Eduardo E. Betancourt with whom Hernandez  Sanchez Law Firm was on            _____________________           ___________________________        brief for appellants.            James G. Touhey, Jr., Trial Attorney,  with whom Stuart M. Gerson,            ____________________                             ________________        Assistant  Attorney  General,  Daniel  F. Lopez  Romo,  United  States                                       ______________________        Attorney,  and Jeffrey Axelrad, Director,  Torts Branch, were on brief                       _______________        for appellee.                                 ____________________                                    April 20, 1993                                 ____________________                      STAHL, Circuit Judge.   In this appeal,  plaintiffs                             _____________            Miguel  de  Casenave  and  his  wife,  Maria  A.  Morales  de            Casenave, challenge  the district court's  dismissal of their            complaint as  time-barred.   We  affirm the  judgment of  the            district court, although on different grounds.                                          I.                                          I.                                          __                                Procedural Background                                Procedural Background                                _____________________                      On  March  24, 1989,  plaintiff Miguel  de Casenave            allegedly sustained  personal  injuries when  he tripped  and            fell  while  on the  premises of  the Roosevelt  Roads United            States  Naval Station, in Ceiba,  Puerto Rico.   On April 27,            1989,  Mr.  de Casenave  and  his  wife, plaintiff  Maria  de            Casenave,  presented   tort  claims  to  the   United  States            government  based on  this incident.   The  government denied            their claims on March 26, 1990, and mailed them the notice of            denial two  days  later.   On  August  14,  1990,  plaintiffs            commenced an  action in federal court  against the government            under  the Federal  Torts Claims  Act ("FTCA"), 28  U.S.C.               1346(b),  2671,  et  seq.,  alleging  that  the  government's                             __  ____            negligent  maintenance of  a  sidewalk at  the Naval  Station            caused his  injuries.   During the  pendency of  that action,            plaintiffs'  counsel failed  to comply with  an order  of the            district  court  (Pieras,  J.)  directing him  to  attend  an            initial scheduling conference and to file certain  scheduling            memoranda.    As a  result,  Judge  Pieras found  plaintiffs'                                         -2-                                          2            counsel  in violation  of  Federal Rules  of Civil  Procedure            16(f)  and 37(b)(2), and, in an order dated January 18, 1991,            dismissed the complaint.   See de Casenave  v. United States,                                       ___ ___________     _____________            No.  90-2095(JP), slip  op. at 5  (D.P.R. January  18, 1991).            The judgment of  dismissal was entered on  January 23, 1991.1            On March 4, 1991, Judge Pieras denied plaintiffs'  motion for            reconsideration  of that  dismissal,  and on  April 3,  1991,            plaintiffs filed a notice  of appeal.  Subsequently, however,            plaintiffs moved  for a voluntary dismissal  of their appeal,            which this court entered on May 28, 1991.                      On July  10, 1991, plaintiff filed  a new complaint            against  the  government  which contained  verbatim  the same            allegations  as  the  first  complaint.    In  response,  the            government filed a  motion to dismiss, arguing  that the six-            month statute  of limitations  on plaintiffs' FTCA  claim had            run.  The  district court (Cerezo,  J.) agreed and  dismissed                                            ____________________            1.  In his  January 18 order,  Judge Pieras  stated that  the            dismissal was  "with prejudice."  The  judgment of dismissal,            however, stated that the dismissal was "without prejudice."                                         -3-                                          3            the complaint.2   See de  Casenave v. United  States, 797  F.                              ___ ____________    ______________            Supp. 86, 87 (D.P.R. 1992).  This appeal followed.                                         II.                                         II.                                         ___                                      Discussion                                      Discussion                                      __________                      A FTCA  claimant has six  months from the  date the            federal agency  mails the notice  of final denial  of her/his            claim  to  file  suit in  federal  court.   See  28  U.S.C.                                                          ___            2401(b).3  Here, the  government mailed plaintiffs the notice            of final denial of their claim on March 28, 1990.  Plaintiffs            filed their new lawsuit  more than one year after  the notice            of  denial was mailed.  Thus, the instant complaint was filed            well outside  the six-month  limitations period.   Plaintiffs                                            ____________________            2.  The  district  court  held  that,  because the  six-month            statute of limitations was jurisdictional, it had no power to            apply principles  of equitable tolling  to plaintiffs' claim.            In  light of the Supreme Court's holding in Irwin v. Veterans                                                        _____    ________            Admin.,  498 U.S.  89, ___,  111 S.  Ct. 453,  457-58 (1990),            ______            discussed infra, the  district court's  refusal to  entertain                      _____            plaintiffs'  tolling argument  was  erroneous.    On  appeal,            however, we are  "free to affirm a  district court's decision            on  any ground supported in the record  even if the issue was            not  pleaded,   tried  or   otherwise  referred  to   in  the            proceedings below."  Resare v. Raytheon Co., 981 F.2d 32, 44-                                 ______    ____________            45 n.30  (1st Cir. 1992)  (quoting Chamberlin v.  101 Realty,                                               __________     ___________            Inc., 915 F.2d 777, 783 n.8 (1st Cir. 1990)).              ____            3.  28 U.S.C.   2401(b) provides:                      A  tort claim  against the  United States                      shall  be  forever  barred  unless  it is                      presented in writing  to the  appropriate                      Federal  agency  within  two years  after                      such  claim accrues  or unless  action is                      begun within six months after the date of                      mailing, by certified or registered mail,                      of notice of final denial of the claim by                      the agency to which it was presented.                                         -4-                                          4            argue, however, that the six-month  limitations period should            have  been tolled during  the pendency of  the first lawsuit.            We do not agree.4                      In  cases "where  the claimant [fails]  to exercise            due diligence in preserving  his[/her] legal rights,"  Irwin,                                                                   _____            498 U.S. at  ___, 111 S. Ct. at 458,  courts are reluctant to            apply  principles of  equitable tolling  to extend  a federal            limitations period.   See id.  at ___, 111  S. Ct. at  457-58                                  ___ ___            ("Federal  courts have  typically  extended equitable  relief            only  sparingly.    We  have  allowed  equitable  tolling  in            situations  where  the  claimant  has  actively  pursued  his            judicial remedies  by filing a defective  pleading during the            statutory period,  or where the complainant  has been induced            or tricked  by his  adversary's misconduct into  allowing the            filing  deadline  to pass.")  (footnotes omitted);  Pipkin v.                                                                ______            United  States, 951 F.2d 272,  274 (10th Cir. 1991) (refusing            ______________            to toll  FTCA six-month  limitations period during  filing of            previous FTCA lawsuit  which was dismissed  without prejudice            for failure to prosecute).                      Plaintiffs'  initial lawsuit  was dismissed  due to            their counsel's refusal  to abide by the  discovery orders of                                            ____________________            4.  Because the facts upon which plaintiffs' tolling argument            rests are undisputed, we see no reason to remand this case to            the district court.  See,  e.g., Societe Des Produits Nestle,                                 ___   ____  ____________________________            S.A.  v. Casa  Helvetia, Inc.,  982 F.2d  633, 642  (1st Cir.            ____     ____________________            1992) (using findings  of fact  made in the  framework of  an            unacceptable legal  analysis to  affirm on a  different legal            theory).                                         -5-                                          5            the district court.   The  record contains  no evidence  that            plaintiffs were induced  or tricked by any misconduct  on the            part of the government to delay as long as they did in filing            this lawsuit.5   Rather, this case is  a classic example of a            party  "[fail]ing  to  exercise due  diligence  in preserving            his[/her] legal rights."  Irwin, 498 U.S.  at ___, 111 S. Ct.                                      _____            at 458.   Thus, we discern no basis  under which the district            court  could  have  applied  equitable principles  to  rescue            plaintiffs' complaint.  Cf. Pipkin, 951 F.2d at 275 (refusing                                    ___ ______            to toll FTCA six-month  limitations period during pendency of            previously filed lawsuit).                        Even if the district court  had decided to toll the            six-month  limitations period  between  the  time  plaintiffs            filed  the  first  lawsuit  and  the  time  that  action  was            dismissed, plaintiffs' instant complaint would still be time-            barred.6   Plaintiffs waited four  months and sixteen days to                                            ____________________            5.  At  oral argument,  plaintiffs appeared  to be  asserting            some sort  of estoppel theory based on  an alleged discussion            with counsel  for the government  during the pendency  of the            previous   appeal.     This  theory,  however,   was  neither            articulated  below  nor  developed  in plaintiffs'  brief  on            appeal.  As such, we need not address it.  See, e.g., Lafont-                                                       ___  ____  _______            Rivera v. Soler-Zapata,  984 F.2d  1, 3 n.2  (1st Cir.  1993)            ______    ____________            (refusing  to   address  issue  which  appellant   failed  to            articulate  below);  Rodriguez-Pinto  v. Tirado-Delgado,  982                                 _______________     ______________            F.2d 34, 41  (1st Cir. 1993) (deeming issue  adverted to in a            "perfunctory manner" on appeal waived).            6.  Plaintiffs cannot  successfully  argue that  the  tolling            period should extend through the time that plaintiff filed an            unsuccessful motion for reconsideration of the dismissal.  We            have  previously rejected  that  same argument  in a  similar            context.  Hilton  Int'l Co.  v. Union de  Trabajadores de  La                      _________________     _____________________________                                         -6-                                          6            file  their  first  lawsuit.   After  the  dismissal of  that            lawsuit, plaintiffs waited in excess of five months to refile            their  complaint.   Thus,  even giving  them  the benefit  of            tolling, plaintiffs  waited  more  than  nine  months  before            bringing  suit.7   We therefore  affirm, albeit  on different            grounds, the district court's decision to dismiss plaintiffs'            complaint.                      Affirmed.                      Affirmed.                      _________                                            ____________________            Industria  Gastronomica,  833 F.2d  10,  11  (1st Cir.  1987)            _______________________            (holding  that   plaintiff's   filing   of   a   motion   for            reconsideration  of  a   dismissal  of  a  previously   filed            complaint  does  not  toll limitations  period  in subsequent            action).             7.  The question of whether the court's dismissal was with or            without prejudice is therefore irrelevant.                                         -7-                                          7
