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
_________________
Stephen H. Clark, Acting Corporation Counsel,
_________________
appellees.

Counsel, with whom

was on brief, for

_________________________

December 1, 1995

_________________________

SELYA, Circuit Judge.

SELYA, Circuit Judge.
_____________

Well after he had been

arrested

and allegedly

appellant

U.S.C.

the

manhandled by

Audley

1983.

I.
I.

McIntosh commenced

The

the ground

McIntosh appeals.

officers, plaintiff-

civil

district court granted

defendants' favor on

suit a day late.

Boston police

action under

42

summary judgment in

that McIntosh

had brought

We affirm.

BACKGROUND
BACKGROUND

We

congenial

set forth the substantiated facts in the light most

to the party opposing summary judgment.

See Pagano v.
___ ______

Frank, 983 F.2d 343, 347 (1st Cir. 1993).

_____

Boston

morning

police officers

of January

wrongfully detained

boot.

7,

1990.

him for

That afternoon,

arrested appellant

He

alleges that

several hours

the

during the

gendarmes

and battered him

the police transported

to

appellant to the

emergency

room

of a

local hospital

released at approximately 7:00 p.m.

with

where

he was

treated and

The authorities charged him

a multitude of offenses (including assault and battery of a

police officer), but they did not further detain him.

In short

all

the charges.

prepared a

order, a Massachusetts

At

a much

causes

of

later date,

four-page complaint

premised on 42 U.S.C.

action.

1983.

It

appellant's attorney

confined exclusively to

a claim

The complaint contained no pendent

named

Commissioner

Francis

defendants.

On January 7, 1993

Mayor

Roache,

appellant's infelicitous

state court dismissed

and

Raymond

several

"John

three years to

encounter with the police

Flynn,

Police

Does"

as

the day after

the lawyer

(1) transmitted a facsimile of the complaint's first two pages to

the

clerk's office of the

the

original complaint,

clerk

by

with

certified mail.

abbreviated facsimile

6:00

federal district court,

the required

The

clerk's

transmission

and 7:00 p.m. on January

7).1

and (2) sent

filing fee,

office

after hours

to the

received

(i.e.,

the

between

The mailed envelope reached

the office on January 8 and a deputy clerk docketed the case that

day.

The

wrongdoing,

statute of

and

defendants

and asserted

an

limitations.

a belated

effort

defendants moved

56(c).

answered

the

complaint,

affirmative defense

Following the completion

to reconfigure

for brevis
______

the suit,2

disposition under

denied

any

based on

the

of discovery

the remaining

Fed. R. Civ.

P.

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

including the

demand for

judgment, were not

the complaint,

sent by

facsimile

transmission to the clerk's office until the next afternoon.

2On January
that spelled out
abuse of
assault
of

20, 1994, appellant filed

a bevy of

pendent state-law claims,

process, malicious prosecution,

and battery, false

emotional distress,

an amended complaint

including

negligent supervision,

imprisonment, intentional infliction

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.

the chronology,
either as a means
for bringing

we doubt the

of asserting neoteric

that "John

66 F.3d

statutes of limitations,

individual

police officers

suit).

466,

Doe" designation

circumvent

Because we dispose

belatedly

vehicle

See, e.g., Barrow v.

___ ____ ______
468

(2d

cannot be

and affirming
added to

of the appeal

need not probe these points.

amended complaint

claims or as a

new defendants into the case.

Wethersfield Police Dept.,

___________________________
(explaining

efficacy of the

Given

Cir. 1995)

employed to

judgment for

a civil

rights

on other grounds,

we

the

court denied

Rule 56 motion

delinquent

produced.

a third request

in the defendants' favor

opposition

that

decided the

without considering the

appellant's

counsel

eventually

See D. Mass. Loc. R. 56.1 (providing that the facts as

___

presented by the movant are deemed

summary

and subsequently

judgment motion

when

admitted for the purpose of a

no timely

opposition is

filed).

These appeals ensued.

II.
II.

THE LEGAL LANDSCAPE

THE LEGAL LANDSCAPE

The district

that

court rested

its decision on

the ground

appellant's section 1983 claim was time barred.

On appeal,

McIntosh disputes this conclusion.

we start

To afford needed perspective,

by reviewing certain abecedarian

inform our analysis of the issues presented.

legal principles that

A.
A.

Summary

The Summary Judgment Standard.

The Summary Judgment Standard.
_____________________________

judgment is

appropriate when

the "pleadings,

depositions, answers to interrogatories,

and admissions on file,

together

show

with

the affidavits,

if any,

that there

genuine issue as to any

material fact and that the

is entitled to judgment

as a matter

56(c).

rule

We have

of law."

moving party

Fed. R. Civ.

written copiously on the idiosyncracies

and on its ramifications, see,

___

Airlines, Inc., 56 F.3d 313,

_______________

is no

P.

of this

e.g., McCarthy v. Northwest

____ ________
_________

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

___
_________________________

F.3d 56,

58 (1st Cir. 1993);

Pagano, 983 F.2d at

______

Tufts Univ. Sch. of Med., 976 F.2d

_________________________

347; Wynne v.
_____

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

959

F.2d

349,

Cir. 1992); Rivera-Muriente v. Agosto-Alicea,

_______________
_____________

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

It

suffices

pierce the

to reaffirm

to rehearse that jurisprudence here.

that

boilerplate of the

"summary judgment's

pleadings and assay

proof in order to determine whether trial is

role

is to

the parties'

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

reconciling all competing inferences in

Pagano, 983 F.2d at 347.

______

8.

See
___

This

targets

burden

"produce

27 F.3d

that party's favor.

See
___

Nonetheless, a party contesting summary

judgment must offer the court

rhetoric.

nonmoving party,

more than posturing and conclusory

Morris, 27 F.3d at 748; Medina-Munoz, 896 F.2d at

______
____________

principle is brought into

bold relief when the

motion

an issue on which the nonmoving party bears the ultimate

of

proof.

In

that

specific facts, in

at

748,

in order

circumstance,

the

nonmovant must

suitable evidentiary form," Morris,

______

to

demonstrate the

presence

of

trialworthy issue

and thereby

deflect

the sharp

blade of

the

summary judgment ax.

Questions

passage of time on

anent

the applicability

and effect

particular sets of facts often

the summary judgment mill.

at 352; Jensen v. Frank, 912

______
_____

See, e.g.,
___ ____

of the

are grist for

Rivera-Muriente, 959 F.2d

_______________

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

trialworthy issue customarily falls on the plaintiff.

See, e.g.,
___ ____

Morris, 27 F.3d at 748.

______

B.
B.

The

1983

claim.

The Statute of Limitations.

The Statute of Limitations.
__________________________

linchpin of

the appellant's

case is

his section

We, therefore, train our sights exclusively on this

claim.3

Section

1983 creates

private right

redressing abridgments or deprivations of

rights.

of action

for

federal constitutional

The resultant liability is akin to tort liability.

See
___

Heck v. Humphrey, 114 S. Ct. 2364, 2370 (1994); Memphis Community

____
________
_________________
____________________

3Apart from the

independent

section 1983 claim,

basis for federal jurisdiction.

court appropriately granted summary

claim, then
of

the record reveals

supplemental

1367(c)(3)) acted

Thus, if the lower

judgment on the section 1983

the court (which expressly

exercising

disclaimed any intention

jurisdiction

under

well within its discretion

appended state-law claims.

Cir. 1995) (reaffirming principle

court,

its

discretion,

contemporaneous with
"no legitimate
filed,
_____

64

28

in jettisoning the

may

federal question

dismiss

pendent

Consequently,

address any claim apart from the section 1983 claim.

claims

of trial, that

exist[s]"), petition
________

(1995).

F.3d 980,

that the district

a determination, in advance

U.S.L.W. 3250

U.S.C.

See Martinez v. Colon, 54

___ ________
_____

990-91 (1st
in

no

for cert.
___ _____

we need

not

Sch. Dist. v. Stachura, 477 U.S. 299, 305 (1986).

__________
________

does not contain

in

processing

a built-in statute of

such

actions,

limitation period from state law.

Section 1983

limitations.

federal

court

must

Therefore,

lift

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),

Street v.
______

see Mass. Gen.

___

Vose, 936
____

L. ch. 260,

F.2d 38, 40

2A (1992);

(1st Cir. 1991)

see also
___ ____

(per curiam),

cert. denied, 502 U.S. 1063 (1992), and the parties agreed before

_____ ______

the

district court that it

statute

to derive

was appropriate to

the limitation

before the district court was

period.

borrow from this

Thus,

the question

whether the appellant brought

his

section 1983 action within the prescribed three-year period.

In this venue,

same

underlying

appellant tried to

for malicious

configured

6-7]

assumption.

At

the

argument, however,

the

take advantage of

limitation period.

claim as one

the differently

See Calero-Colon
___ ____________

v. Betancourt___________

___, ___ (1st Cir. 1995) [No. 95-1193, slip op.

(discussing

characterization).

oral

the appeal on

recharacterize his section 1983

prosecution to

Lebron, ___ F.3d

______

at

the parties briefed

need

This effort

and

methodology

comes too

late and

for

such

offers too

little.

rights

and

The original complaint asserted

that appellant's civil

had been abridged by means of "false arrest" and "assault

battery."

The

complaint

did

not

mention

malicious

prosecution

suggest

and, indeed,

there

is

nothing

that any of the named defendants

prosecution

may

have

transpired.

Since

in the

record

to

had a hand in whatever

the

district

court

properly

arrest,

characterized the

the

question

suit as

question before

to which the district

district court's answer

to the

us is

it stood

as one

precisely

for false

the same

court responded.

as the

We review the

question de novo.

See
___

Rivera_______

Muriente, 959 F.2d at 352.

________

Although the

law, the

federal

limitation period is borrowed

jurisprudence of

law in

order

section

to determine

1983 directs

the

from state

us to

examine

accrual period.

See
___

Calero-Colon, ___ F.3d at ___ [slip op. at 5]; Morris, 27 F.3d at

____________
______

748.

Under

"knows, or

is

based."

federal

law, accrual

starts

when

the

plaintiff

has reason to know, of the injury on which the action

Rivera-Muriente,
_______________

disputes focus on when

959 F.2d

at

353.

Most accrual

the limitation period began to

run, that

is,

when the plaintiff's causes

Calero-Colon, ___
____________

at 749.

Here, the

relevant

1990; the

of action accrued.

See, e.g.,
___ ____

F.3d at ___ [slip op. at 5-6]; Morris, 27 F.3d

______

commencement date is not a problem:

actions of the police officers took place on January 7,

appellant was treated

that day; and

and released from

he knew then that

the hospital

he had been harmed.

Thus, the

appellant's cause of action accrued on January 7, 1990.

accrual period is measured

date,

latter.

and

all the

the pivotal

Consequently,

But

the

by both a starting date and an ending

controversy

we

must

in this

shine

case

the

concerns the

light

of

our

understanding on

McIntosh took

the available facts to determine

an action sufficient

the date when

to interrupt the

running of

the limitation period.

III.
III.

ANALYSIS
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

time

for

bringing

suit

ran

out

on

then and there; the

January

7,

1993;

the

appellant's

action

was

not

accordingly,

the

suit was

filed until

untimely.

the

The

next

day;

appellant

and,

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.
A.

The

transmission

appellant

satisfied

Filing By Facsimile.
Filing By Facsimile.
___________________

posits

the

that the

January

filing requirements

Rules, thus stopping the limitations clock.

the graveyard.

Absent

a local

of

facsimile

the

Civil

He is whistling past

rule authorizing

the practice,

facsimile filings in a federal court are dead on arrival.

As

of January

pertinent part:

7, 1993,

the Civil

Rules provided

in

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.

Fed. R. Civ. P.

5(e).4

The Judicial Conference

has "authorized

courts,

permit

effective December

the clerk

to

1,

1991, to

accept for

adopt

filing

facsimile

transmission equipment, provided

permitted

only (1) in

practice

1991."

which

to

papers transmitted

by

that such

compelling circumstances

was established

by the

court

filing is

or (b)

under a

prior to

May 1,

Reports of the Proceedings of the Judicial Conference of

________________________________________________________

the U.S. 52-53

_________

(1991).

The appellant

Conference has authorized this

facsimile

local rules

is permissible.

argues that,

since the

method of transmission, filing by

This argument

disregards both

the

realities of the instant situation and the text of Rule 5(e).

For

granted

the

one thing,

the

Conference, at

limited authorization

warned that "the routine acceptance

to

which

the same

time it

we have

alluded,

. . . of court documents

by

facsimile would

administrative

facsimile

and was

present practical

and resource

burden to

filing here occurred

not brought

attorney's

about by

nonchalance.

problems and would

the courts."

in the most

the

Id.
___

The

mundane of contexts

any special exigency

Thus,

create an

but by

circumstances

the

are hardly

"compelling."

For another thing, the appellant's argument ignores the

plain language of

Rule 5(e).

Implicit therein

is the

concept

The

Advisory

____________________

4Later

in 1993,

Committee described
at "permit[ting]

Rule

5(e)

was

the change as "a

filing not only by

also by other electronic

amended.

technical amendment" aimed

facsimile transmissions but

means," Fed. R. Civ. P.

committee's note to 1993 amendment.

to these appeals.

10

5(e), advisory

The revision is not relevant

that, absent

a local rule authorizing filing

filings are null.

B.R.

filed

13, 17

See,
___

by facsimile, such

e.g., In re Hotel Syracuse, Inc.,

____ ___________________________

(N.D.N.Y. 1993)

(holding that

a notice

154

of appeal

by facsimile, not authorized under any local rule, did not

interrupt the progression of the appeal period).

suggested construction would render

superfluous.

The appellant's

the reference to local rules

Since a court called upon to construe a procedural

rule should

give effect,

phrase contained in

whenever possible, to

the rule's

text, see Jamerson

___ ________

Trustees of the Univ. of Ala., 80

________________________________

1978),

see also United States

___ ____ _____________

751-52 (1st Cir. 1985)

The local

the District

In

of Massachusetts

filing is

this

was

requirements of

758 F.2d 741,

do not

States District Court for

authorize

the filing

of

That ends the matter.

case,

moreover,

invalid for two other

transmission

(N.D. Ala.

decline to follow the appellant's

rules of the United

papers by facsimile.

v. Board of
_________

F.R.D. 744, 749

v. Ven-Fuel, Inc.,
______________

and

(explicating similar principle in respect

to statutory construction), we

lead.

every word

the

appellant's

reasons.

First,

incomplete.

Although

the

the Civil Rules

are to be

facsimile

the January 7

notice

pleading

construed liberally,

there

are bounds to liberality.

action, half

a complaint

does not even contain a

For purposes

particularly

of commencing an

an unsigned half

demand for judgment

that

is no

better than

send even

the partial

none.

Second,

facsimile

the appellant

transmission

did not

until after

11

the

close

of business

on

January 7, 1993.

states

Despite the

fact that Fed.

R. Civ. P.

77(a)

that "district courts shall be deemed always open for the

purpose of filing any pleading or other proper paper . . . ," the

word "filing"

delivery

as used

into

the

therein

actual

is a

custody

word of

art.

of

proper

the

It

"means

officer."

Casalduc v. Diaz, 117 F.2d 915, 916 (1st Cir.), cert. denied, 314
________
____
_____ ______

U.S. 639 (1941).

Consequently, Rule 77(a) has

uniformly to mean

that the clerk's office need not

around the clock,

and that, outside of

merely

leaving

constitute

papers in

a closed

"filing" sufficient for

or

been interpreted

be kept open

ordinary business hours,

vacant office

commencement of

does not

an action.5

See Greenwood v. State of N.Y. Office of Mental Health, 842

___ _________
_____________________________________

636,

639 (2d Cir. 1988); Casalduc, 117

________

F.2d

F.2d at 916; see also 12

___ ____

Charles

A.

Procedure
_________

Wright

&

Arthur R.

Federal Practice and

_____________________

3081, at 179 (1990).

B.
B.

The

deemed to

mailed

Miller,

appellant

have been

on that

acknowledges,

proposition

that

strength of

his

argues

filed on

date.

the

Filing By Mailing.
Filing By Mailing.
_________________

Rules

hawks

thesis

the complaint

January 7, 1993,

This is

Civil

he

that

a hard

do

not

therefore

that the

because it

sell; as

so

rises

district

should

be

was

the appellant

provide,

and

the

or

falls on

the

court

should

have

____________________

5After
delivery
117
have

hours,

papers

to the clerk or

F.2d at 916.

can

validly

filed

other proper official.

In addition, some

established so-called

be

by

in-hand

See Casalduc,
___ ________

clerks' offices reportedly

"night depositories"

to accommodate

after-hours

filings.

night depository,

This case does

and we take

not involve an established

no view of

the efficacy of

that

practice.

12

followed state practice.

Mass.

action

with

R. Civ.

The proposition falls.

P.

3 permits

either by filing the complaint

the

clerk

of the

complaint and fee to

appropriate

the

commencement of

an

(and the concomitant fee)

court

or

the clerk by certified or

by mailing

the

registered mail.

Thus, if

the appellant had elected

and state

courts have

under section

(1980)

to sue in the

state court

concurrent jurisdiction in

1983, see Maine

___ _____

v. Thiboutot,
_________

suits brought

448 U.S. 1,

3 n.1

mailing the complaint would have sufficed (if barely) to

eclipse the looming temporal bar.

The appellant made a different

election,

invoke

"arising

suit

however,

choosing

to

the

under" jurisdiction, see 28 U.S.C.

___

in a federal venue.

procedural rules govern.

Therefore, federal

district

court's

1331, and to bring

rather than state

See Hanna v. Plumer, 380 U.S. 460, 470___ _____

______

71 (1965).

The appellant

suggests two reasons why

not come within Hanna's sphere of influence.

_____

this case does

First,

he tells us

that

using the

state

federal question

procedural rule

arises under

is

fitting because

section 1983 and,

the

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

"[W]hen

of

borrowing directive

means no

it is necessary for a federal

more than

it says.

court to borrow a statute

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

period from state law

does

not possess

court is

a self-contained

a statute

1987).

interstices in

statute of

federal law.

limitation

The

of limitations

limitations, the

The federal

law for guidance, but it does

creation of

Cir.

borrows a

for use in implementing a federal law that

suitable judicial task."

(7th

federal court

nonetheless applying

"looks to state

the

so simply because

is not

considered a

Hemmings v. Barian, 822 F.2d

________
______

mantra,

federal law,

then,

is

court

that when

federal courts should

what is necessary to close the gap left by Congress."

688, 689

bridging

borrow "only

West, 481
____

U.S. at 40 n.6.

Beyond

simpliciter,
___________

state law.

the

need

to

borrow

limitation

period

the case at hand presents no occasion for resort to

In the wake of West, federal courts consistently have

____

held that questions concerning the commencement of a section 1983

action

in a

See, e.g.,
___ ____

federal court are

governed by

Fed. R.

Civ. P. 3.

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

reference to

must

be filled

by

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.

adequately covers

federal

the mechanics

district court,

clear that

and

of commencing

the rule

an

makes it

Rule 3

action in

transpicuously

an action is commenced when the papers are filed.

In

14

turn, Fed. R. Civ.

purposes,

P. 5(e) defines

as "filing . .

filing, for all intents

. with the clerk of

the court."6

and

The

commencement construct created by the Civil Rules is complete and

self-contained, and leaves

no room for improvisation.

construct, the instant complaint

January 8,

1993, and, therefore,

commenced within the limitation

to the clerk's office,

receipt of

them.

was not effectively filed until

the underlying action

period.

When papers

filing is complete only upon

See Cooper
___ ______

Under the

v. City of Ashland,
_______________

was not

are mailed

the clerk's

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

determine

the outcome of the litigation.

time line

will

This argument will not

wash.

procedural

meaningful discourse on the applicability of federal

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
judges,
with the
filing

5(e)

contains one

explicit

in their discretion, to

"permit the papers

judge, in which event the

date and

exception.

forthwith transmit

clerk."

15

It

allows

to be filed

judge shall note thereon the

them to

the office

of the

noted that "`outcome-determination'

to

serve as a talisman."

analysis was never

Hanna, 380 U.S. at 467 (citing Byrd v.

_____
____

Blue Ridge Rural Elec. Coop., Inc., 356 U.S.

____________________________________

Even

intended

525, 537 (1958)).

in a diversity case (where state law supplies the basis for

decision), the correct inquiry is not whether

federal

and

state

procedural

rules

determinative, but whether a federal rule

the choice between

will

prove

outcome

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

___ F.3d

Cutting
_______

___,

See id.;
___ ___

___ (9th

accord Aceves v.
______ ______

Cir.

Allstate Ins. Co.,

__________________

1995) [1995

v. Town of Allenstown, 936 F.2d

__________________

WL

604009, at

*8];

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,
_____________________

application

Supreme

Court approved

the

of Oklahoma's tolling statute, which required actual

service of process,
742-44.

the

in lieu of Fed.

R. Civ. P.

3.

See id.
___ ___

at

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."
that

Id. at 751-52.
___

"[federal]

Rule

determinations,"
state

statute,

On this basis, the Court concluded

does

but, rather,

not

exists

"each controlling

coverage without conflict."

The case

the

conflict;

both

Massachusetts
does
place,

cannot be

In

is simply

a substantive

the role of

side" with

intended sphere

the

of

extent, are

in direct

the second

place, the

a procedural

state policy.

took special care

Rule 3 as

In

rules here at issue serve

that

applied.

the Armco Steel Court

___________

"address[ing]

policy

analogous to Armco Steel.

___________

and, to

procedural rule

not implicate

own

such

Id. at 752.
___

at bar is not

same purpose

"side by

its

the first place, the federal and state

exactly

replace

a tolling

In

rule; it

the third

to refrain from

provision for a

statute of

limitations, whether set

from state

law, if the cause of action is based on federal law."

Id. at 751 n.11.

___

16

by federal law

or borrowed

Frechette
_________

Court

v. Welch, 621 F.2d 11, 13-14

_____

wrote in

Hanna, "to
_____

Procedure must cease to

hold that

(1st Cir. 1980).

a Federal

Rule

of Civil

function whenever it alters the

enforcing state-created rights would

As the

mode of

be to disembowel either the

Constitution's grant of power over federal procedure or Congress'

attempt to

There is

exercise that power

. .

. ."

380 U.S.

at 473-74.

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

complaint in

sufficient to mark

court.

rule.

This case

It

the

mail

does not

the commencement

constitute

of an action

falls squarely within the

follows

inexorably

seasonably commence

his suit

that

the

by mailing

filing

in a

federal

maw of the

general

appellant

the

did

not

complaint to

the

clerk's office on January 7, 1990.

C.
C.

We

have

Miscellaneous Arguments.
Miscellaneous Arguments.
_______________________

considered

arguments and find

all

the

appellant's

them to be unpersuasive.

Only

remaining

three of them

require any comment.

1.
1.

district

within

The Failure to Grant a Third Extension.

The Failure to Grant a Third Extension.
__________________________________________

court

which

allowed the

to

oppose

the

appellant

two

defendants'

The

extensions of

motion

for

time

summary

judgment,

but

assigns error.

balked

the third

time

around.

The appellant

We discern none.

The administration

of filing deadlines is

a matter of

17

case

management

discretion.

that

See Mendez v.
___ ______

comes

within

the

district

court's

Banco Popular de P.R., 900 F.2d

_____________________

4, 6

(1st Cir. 1990); see also Fed. R. Civ. P. 6(b).

___ ____

expect

that

extensions on

courts will

demand

district court's

to suit

to their

lawyers'

every

tune, granting

schedules.

generosity in granting two

weakness of the excuse

seeking

dance

Litigants cannot

in the court's exasperated

see no hint

the

extensions, and the

proffered by the appellant's

yet another boon,8 we

Given

attorney in

of any arbitrariness

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.
2.

Waiver.
Waiver.
______

The appellant asserts that, by failing to

move

for judgment

on

the limitations

proceedings, the defendants

foothold in

the

law.

defense

earlier in

the

This

assertion has

no

waived it.

The

defendants raised

the

affirmative

defense in a timeous manner by including it in their answer.

Fed. R.

Civ. P. 8(c),

12(b)(6), 12(h)(2).

See
___

They were

under no

little more than

a plaint

____________________

8Counsel's statement

amounts to

that he was suddenly called out

of town on other business on the

last day of the second extension period.

busy most of the time and they
be

able

to

meet the

handling

or

suffer

time
the

But "most attorneys are

must organize their work so as to

requirements

consequences."

of

matters they

Pinero Schroeder
_________________

are

v.

Federal Nat'l Mortgage Ass'n, 574 F.2d 1117, 1118 (1st Cir. 1978)
____________________________
(per curiam).

9In an abundance of
opposition
expired.

that the
Even

caution, we have examined

appellant

filed after

if the opposition were fully

the untimely

the last

extension

considered, nothing

contained therein would alter the outcome of this appeal.

18

obligation

limitations

to do

more.

Once

defendant

raises

defense in his answer, the issue remains in the case

until it is deleted from the pleadings or

See Pessotti
___ ________

1991).

timely

There

v. Eagle Mfg. Co.,

_______________

is no

desires to force an

inequity in

946

resolved by the court.

F.2d 974,

this rule;

979 (1st

if the

up-or-down decision on the asserted

Cir.

plaintiff

defense

in the early stages of

the

forefront.

the case, he has the power to bring it to

See Fed.
___

R. Civ.

appellant could have seized

so.

P. 12(c)-(d).10

Here,

the opportunity but chose not

the

to do

As a result, it does not lie in his mouth to complain of the

defense's alleged laggardness.

3.
3.

Disability.
Disability.
__________

afterthought,11

disability,

tolled.

is pure

"[i]ssues

The appellant, in what seems to be

suggests

that

and, therefore,

the

he

may

have

limitation

been

period

under

should

an

be

On this record, the notion of any cognizable disability

conjecture.

adverted

In any

to

on

event, we have regularly

appeal

in

perfunctory

held that

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

judgment on the

pleadings."

defenses specifically
this

rule, whether

motion
shall

part that "any party may

Rule 12(d) provides in

enumerated (1)-(7)
made

in a

for judgment mentioned

move for

part:

in subdivision

pleading or

by motion,

in subdivision

(c) of

"The

(b) of

and the

this rule

be heard and determined before trial on application of any

_____________________

party . . . ." (emphasis supplied).

_____

11The appellant
from
as

never advanced

the argument below.

its other shortcomings, the argument

well.

See Clauson
___ _______

v. Smith,
_____

1987).

19

823 F.2d

Apart

fails for this reason

660, 666

(1st Cir.

734 (1st Cir. 1990).

IV.
IV.

CONCLUSION
CONCLUSION

We need go no further.

ago, an English

See
___

Over two and one-half centuries

author called procrastination the thief of time.

Edward Young, Night Thoughts

______________

time,

once stolen,

McIntosh

filed

district

court's entry

favor.

Affirmed.

his

engenders

(1745).

other losses

civil action

of summary

day

As

this case proves,

as

late,

judgment in

well.

Because

we affirm

the

the defendants'

Affirmed.
________

20