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USCA1 Opinion

March 29, 1994


[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1873
A. GREER EDWARDS, JR.,
Plaintiff, Appellant,
v.
FIRST AMERICAN TITLE INSURANCE COMPANY OF NEVADA, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
____________________
Before
Breyer, Chief Judge,
___________
Selya and Cyr, Circuit Judges.
______________
____________________
A. G. Edwards, Jr. on brief pro se.
__________________
Richard B. Couser and Orr and Reno, P.A. on

brief for appell

__________________
___________________
First American Title Insurance Company, John Hancock Mutual L
Insurance Company, Harold Pearson III, William Gordon, John
McElwee, Stephen Brown, Thomas L. McKiernan and Arthur Duncan.
Martha V. Gordon and Nelson, Kinder, Mosseau & Gordon, PC
_________________
________________________________________
brief for appellees Prince A. Hawkins and Hawkins, Rhodes & Sharp.
____________________
____________________

Per Curiam.
___________
Jr.,

has brought a pro

Plaintiff-appellant
se appeal from

judgment dismissing Edwards'


the John Hancock Mutual

Edwards' claims against


American

Title

Nevada attorney Prince

the remaining

Insurance

Co.

Hawkins,

Rhodes & Sharp.

district court's

District of Nevada on grounds of


1404(a).

the district court's

claims against nine defendants:

and the Nevada law firm of Hawkins,


from the

G. Edwards,

Life Insurance Co. ("John Hancock"),

six John Hancock employees,

also appeals

A.

("First

Edwards

ruling transferring
defendant, the
American"), to

First
the

convenience under 28 U.S.C.

In the 1970's the


which Edwards
money

from

Saval Ranching Co. ("Saval"), of

was part owner and later


John Hancock.

Hancock deeds
Nevada owned

As

of trust to

security, Saval

gave

two commercial cattle

resided in Massachusetts, John Hancock foreclosed on

Saval's

which was John

1985, at

foreclosed

Hancock's trustee

Saval's ranches.

ranches in
Edwards

John Hancock

In

John

time when

ranches.

by Saval.

sole owner, borrowed

through First
on the deeds

Hawkins and his law firm

American,

of trust

to

represented John

Hancock in the foreclosure proceedings.


The

deeds

of trust

to Saval's

ranches expressly

included the mineral, oil, and gas rights pertaining to those


ranches.

In

First American

preparing for

the foreclosure

excluded these

sale, however,

mineral, oil, and

from the published description of the

gas rights

properties to be sold.

Although he could not bid on the properties, Edwards attended


the

August 15, 1985 Nevada

the United

States government

foreclosure sale.
purchased

At that sale

the properties

and

acquired

the

properties.

release

of

John Hancock's

interest

in

the

Edwards subsequently moved from Massachusetts to

New Hampshire.
The
federal

U.S. then

district

deficiency.

court

in

The Nevada

First American

had

description

foreclosure.

Nevada to

recover

of

settlement agreement

court ruled on January 5,


Nevada

the mineral, oil, and


the

properties,

In 1989, Edwards

interest in the

against Edwards

violated applicable

statutes by excepting
the

filed suit

by which

and

in the
$600,000

1988 that
foreclosure

gas rights from


invalidated

and the U.S.

the

entered into a

the U.S. transferred

all its

properties to Edwards in return for a sum of

money.
On

January 25,

1991,

Edwards filed

suit in

the

District Court for the District of Massachusetts against John


Hancock.

The suit, which included claims for negligence and

for breach of contract, sought damages for the underinclusive


property description
of the Saval ranches.
negligence claim
claim

on the

in the notices of

The district court dismissed Edwards'

as time-barred, and

merits.

the foreclosure sale

On

September

-3-

dismissed his contract


4, 1992,

this

court

affirmed the
dismissal

dismissal of the negligence

of the

proceedings.

contract claim,

Edwards
_______

claim, vacated the

and remanded

for further

v. John Hancock Mutual Life Ins. Co.,


_________________________________

973 F.2d 1027 (1st Cir. 1992).


Edwards filed the instant
12,

1991 in

Hampshire.

the

District Court

His original

and sought damages


and breach

pro se lawsuit on August


for

the District

of

New

complaint named only First American

for First

American's alleged

negligence

of contract in carrying out the foreclosure sale.

On June 2, 1992, Edwards filed an amended pro se complaint in


which he

added

the other

nine

defendants and

also

added

additional grounds for relief.


On March 23, 1993, the district court (1) dismissed
Edwards'
for

claims against

the eight

of personal

jurisdiction

lack

dismissed Edwards'

claims against

Edwards'

pre-existing

District

of

claims

been

Massachusetts;

against

pursuant to

suit

issued a

Fed.

and
to

P.

New Hampshire;

John Hancock in
John

(3)

1404(a).
R. Civ.

in

against

First American

28 U.S.C.

non-corporate defendants

the

Hancock

transferred

(2)

light of
in

the

Edwards'

District of

Nevada

Edwards appeals,

having

54(b) certificate

by

district court.

Claims Against the Eight Non-Corporate Defendants

the

_________________________________________________

-4-

The
against the
John

district

court

dismissed

Edwards'

eight non-corporate defendants --

Hancock

employees

(Pearson, Gordon,

claims

i.e., the six

McElwee,

Brown,

McKiernan, and Duncan), Nevada attorney Hawkins, and Hawkins'


law

firm -- on the ground that New Hampshire lacked personal

jurisdiction

over any of them under

arm statute, N.H. Rev. Stat. Ann.

the New Hampshire long510:4.

Although Edwards appears to concede in his brief on


appeal

that New Hampshire

lacked personal jurisdiction over

these eight defendants, in his reply brief he insists that he


did not mean to

waive that issue.

Assuming,

arguendo, that

the issue is properly before us, we would affirm the district


court's
district

ruling on this point


court's March

23,

for the reasons


1993 order.

stated in the

Edwards did

not

adequately allege that any of

these non-corporate defendants

--

their

as

distinguished

from

corporate

employer

or

principal,

John

Hancock

--

transacted

business,

owned

property, or committed a tortious act in New Hampshire within


the meaning of the New Hampshire
Stat. Ann. 510:4.
--

There is no dispute

underinclusive

connection

and that

time.

Since

Edwards

description

with the

Nevada

1985

Edwards

of

that the alleged tort


Saval's

foreclosure sale
resided in

this is not

moved to

long-arm statute, N.H. Rev.

in

-- occurred

in

Massachusetts at

a continuing tort,

New Hampshire

properties

after the

that

the fact that

foreclosure sale

-5-

does not mean that the alleged tort occurred, in part, in New
Hampshire.
Edwards

argues that

instead

of dismissing

these

claims, the district court should have transferred the claims


to another forum which

would have personal jurisdiction over

these eight non-corporate defendants.

The district court did

not deal with this point in its opinion.


Edwards

bases his

which provides that whenever

argument on

28 U.S.C.

a "court finds that there

1631,
is a

want

of jurisdiction,

the

court shall,

interest of justice, transfer such action


such court in which the action
at the time it was filed."
that the

district court

if

it is

Some

construction

. . . could have been brought

There is no question in this case


had jurisdiction over

courts

of

the

. . . to any other

the subject-

matter of this action; it was personal jurisdiction


lacking.

in

and

commentators,

the legislative

history

that was

relying

of

have

that a court may

only when

it lacks subject-matter jurisdiction, not personal


___

F.

under

suggested

jurisdiction.

transfer an action

1631,

on

1631

See, e.g., Levy v. Pyramid Co. of Ithaca, 687


___ ___
____
_____________________

Supp. 48, 51 (N.D.N.Y. 1988), aff'd, 871 F.2d 9 (2nd Cir.


_____

1989);

15 Wright,

Procedure
courts

Miller,

& Cooper,

Federal Practice

3842, at 323 (2nd ed. 1986).

-- pointing to the

language of

speaks of "jurisdiction" and

and

By contrast, other
1631 itself, which

makes no further distinction --

-6-

have

held that

1631 does

permit

a transfer

where

the

tranferor court lacks personal jurisdiction.

See, e.g., Ross


___ ___
____

v. Colorado Outward Bound School, Inc., 822


___________________________________

F.2d 1524, 1527

(10th

Cir.

1987);

United
States
_______________

Transportation, Inc., 150 F.R.D. 587


___________________

v.

American
River
________________

(C.D. Ill. 1993).

This

court has yet to rule on the issue.


We
transfer

need not

do so

is sought under

(which provides

that "[f]or

transfer any civil


it might

1406(a)

division

interest of justice,

affirm

which

the denial

brought"), or

shall

"[t]he

parties and

it could

have been

a transfer

court may
or division

under 28

district

dismiss, or

transfer such case

of

1404(a)

of justice, a district

is filed a case laying venue

or district

division in

the convenience of

provides that

district in which

of whether

U.S.C.

action to any other district

have been

(which

Regardless

1631, under 28

witnesses, in the interest

where

here.

if

U.S.C.

court of

in the wrong
it be

in

the

to any district
brought"), we

because

all of

or

would

Edwards'

claims against

the eight non-corporate defendants were time-

barred,

all statutes

under

applicable,
case.

of

limitations

that might

be

at the time he filed those claims in the instant

A federal court may

court under

not transfer an action to another

1631 if the action was time-barred

it was

filed.

Force,
_____

725

See, e.g.,
___ ___

F.2d 1160,

at the time

Billops v. Department of the Air


_________________________________

1163

(8th Cir.

1984).

Similarly,

-7-

transfer
the

under either

1404(a) or

1406(a) would not serve

interests of justice where the action was time-barred at

the time it was filed.

See, e.g., McTyre v. Broward General


___ ___
______
_______________

Medical Center, 749 F.Supp. 102, 105-09 (D.N.J. 1990).


______________
Edwards asserted

six causes of action against some

or all of these eight defendants:


of

(1) negligence; (2) breach

contract; (3) breach of an implied covenant of good faith

and fair dealing; (4)

violation of RICO, 18 U.S.C.

68;

the Massachusetts

(5) violation of

Act, Mass. Gen. Laws


under

of the similar action


court

has already

negligence was
time before

Consumer Protection

93A; and (6) deceptive

Nevada statutes.

1961-

trade practices

In Edwards' prior appeal arising out


Edwards brought in Massachusetts, this

ruled that Edwards'

time-barred under

cause of

action for

Massachusetts law

January 1991, i.e., before

at some

Edwards filed either

the complaint or the amended complaint in the instant action.


Edwards, supra, 973 F.2d at 1029-30.

_______

_____
All

other possible statutes of limitations for any

of Edwards' claims -- whether under Nevada, Massachusetts, or


New Hampshire law --- are six years or
limitations period
New
in

for a negligence

less.

The applicable

action is six

years in

Hampshire, N.H. Rev. Stat. Ann. 508:4, I, and four years


Nevada, Nev. Rev. Stat.

limitations period

11.190, 2(c).

for a contract

breach of an implied covenant of

The applicable

action, or an

action for

good faith, is six years in

-8-

Massachusetts, Mass. Gen. Laws c. 260,


Hampshire, N.H. Rev. Stat.
four years in Nevada,

2; six

years in New

Ann. 508:4, I; and either

Nev. Rev. Stat.

11.190,

six or

1(b), 2(c).

The limitations period for a civil RICO action is four years.


Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483
_____________________
_______________________________
U.S. 143, 156 (1987).

The limitations period for

under Mass. Gen. Laws c. 93A is four years.


c. 260,
assertion

5A.

Finally, Edwards has not

that the

limitations period

an action

Mass. Gen. Laws

disputed appellees'
for an

action under

Nevada

deceptive trade

Nev. Rev. Stat.

practices

statutes is

years.

598A.220, 11.220.

This court already has

strongly suggested, if

expressly held,

that under Massachusetts law

of

negligence

action

four

for

accrued

by

973 F.2d at 1029-30.

Edwards' cause

the

foreclosure sale, i.e., by August 15, 1985.

not

time

of

the

Edwards, supra,
_______ _____

Appellees urge that this

accrual date

should govern all of Edwards' causes of action.


Edwards has
think

that his

given no reason,

contract-based

claims

and we see
and

his

none, to
tort-based

claims should be governed by different accrual dates.


brief

on appeal,

moreover, Edwards

In his

expressly accepted

the

August 15, 1985 accrual date.


In

his

challenge this
whether

as

reply

brief,

accrual date.

a matter

of

Edwards

does

However, his

Massachusetts,

belatedly

only challenge,

New Hampshire,

or

-9-

Nevada law, is his

contention that his causes of

action did

not

accrue

until mid-1990,

allegedly cancelled
Saval ranches.

when

the

U.S. Forest

his grazing permit for

Service

livestock on his

He alleges that this cancellation "[d]irectly

deriv[ed]" from the defective foreclosure sale and caused him


substantial economic harm.
This argument has no

merit because there has been,

and can be, no dispute that Edwards was on notice of possible


substantial injury

as of

the August 1985

foreclosure sale,

when the underinclusive property description may have


the Saval ranches to

be sold for a lower price.

action

a plaintiff

accrues when

attibuted, of

both harm to it

A cause of

has "knowledge,

and the likely

caused

actual or

cause of such

harm, . . . sufficient to stimulate further inquiry which was


likely to alert it to a cause of action against a defendant."
Hanson Housing Authority
_________________________
App. Ct. 440, 446,
409

Mass. 1101,

v. Dryvit System, Inc.,


___________________

560 N.E.2d 1290, 1294 (1990),


565 N.E.2d

plaintiff subsequently

792

(1991).

extent

of action.

of injury

action");
375, 376-78

be

Id.
__

("It

known before

Rowe v. John Deere,


____
__________
(1987).

rev. den.,
___ ___

The fact

that a

suffers some additional harm that may

be traced to the same likely cause does


the cause

29 Mass.

not delay accrual of

is not

required that

accrual

130 N.H. 18,

See Sorenson v.
_____________

of a

cause

of

21-23, 533 A.2d

Pavlikowski, 94
___________

440, 443-44, 581 P.2d 851, 853-54 (1978).

the

Nev.

-10-

Accordingly, with an accrual

date of no later than

August 15, 1985, the latest Edwards could have brought any of
his claims
1991.

against any

Edwards'

of these

amended

defendants was

complaint

naming

August 15,
these

eight

was

filed

defendants was not filed until June 2, 1992.


Although
three

Edwards'

days before August

these defendants.
of Fed. R. Civ.

original

15, 1991, it

P. 15(c) -- setting forth

to the time the

here.
both

did not name

any of

Edwards has not argued that the provisions

under which claims raised in an


back

complaint

amended complaint can relate

original complaint was

Even if he had
appellees'

the circumstances

briefs

filed -- apply

raised this argument -do

discuss

this

we note that

point,

despite

Edwards' failure to raise it -- we see no merit in it.


Fed. R. Civ. P. 15(c)(1) permits relation back when
"relation
statute

back is

permitted by

of limitations applicable

the statutes of limitations

the law

that

provides the

to the action."

None of

which may possibly apply to

of Edwards' claims contains such a provision.

any

Fed. R. Civ. P. 15(c)(2) permits relation back when


"the claim or defense asserted
out of

in the amended pleading arose

the conduct, transaction, or occurrence

attempted

to be set forth

provision

governs the assertion of new

amended

complaint,

and

in the original

does

set forth or

pleading."

This

legal theories in an

not apply

when

the

amended

-11-

complaint

seeks

to

add

new

parties.

See Jacobson
_____________

v.

McIlwain, 145 F.R.D. 595, 603 (S.D. Fla. 1992).


________
Finally, Fed. R. Civ. P. 15(c)(3) permits
back

of an

amendment

asserted arose out of


pleading,
period
summons

by

action

parties when

Rule 15(c)(2),

[120 days] provided by


and

new

the conduct set forth in

as required

amendment (A)
the

adding

complaint,

the

to

the

claim

the original

"and, within

Rule 4(j) for


party

relation

be

the

service of the
brought

in

by

has received such notice of the institution of


that

the

maintaining a defense on

party

will

not

be

prejudiced

the merits, and (B) knew

in

or should

have known that, but for a mistake concerning the identity of


the proper party, the action would have been brought
the

party."

Edwards

meets

neither

of these

against

latter

two

requirements here.
Edwards has
the

eight

complaint

said nothing

non-corporate

to

suggest

American.

sue

in

made

Indeed, Edwards

parties

the amended

in the record

mistake regarding

rather than merely

further

his memorandum in support

some

any of

complaint within

Nor is there anything

be sued,

time to

named

of the original

that Edwards

proper party to
later

defendants

received notice

120 days of its filing.

to indicate that

the

deciding at

in addition

to

himself acknowledged as
of his motion to file

First
much in

the amended

complaint, when he stated, "The plaintiff has further studied

-12-

his

cause of

Action

justification to
supplementary

in

enlarge

averments

appropriate Defendants."

this

matter

his Complaint
and

by naming

and

has

by adding
related

found

the

relevant
additional

Edwards argues in his brief on appeal that after he


filed his

original complaint, and

also after

he filed

his

amended complaint, the clerk of the district court improperly


delayed

issuing a

4(a).

This

summons as

impropriety,

required by

according

to

Fed. R.

Civ. P.

Edwards,

delayed

service of process upon the defendants.


We need not

consider this matter

because Edwards'

contention, even if true, is irrelevant to our decision.

All

of Edwards' claims against the eight non-corporate defendants


were

time-barred

before

June

2, 1992,

complaint naming these defendants


delay in

service of process on

was beside the


clerk

point.

improperly

was filed.

the

amended

Any subsequent

these defendants, therefore,

Even if somehow

prevented

when

Edwards

the district

from

providing

court
these

defendants with timely notice

of his original complaint, and

those

satisfied

circumstances

somehow

15(c)(3)(A) (points which are by


avail Edwards

Fed.

Civ.

P.

no means clear), this would

nothing, since we have already

R. Civ. P. 15(c)(3)(B) was not satisfied.

Claims Against John Hancock


___________________________

-13-

R.

held that Fed.

As we have said, on January 25, 1991 -- well over a


year

before

the filing

instant case

of

his

adding claims

filed a similar suit

amended

complaint in

against John Hancock

in the District Court for

of Massachusetts, naming John

the

-- Edwards
the District

Hancock as the only defendant.

Edwards' Massachusetts lawsuit, like the instant suit, sought


to recover damages,
of contract, for

based on counts of negligence and breach

the underinclusive property description

in

the notices of the foreclosure sale of the Saval ranches.


The

district

court

found

Massachusetts lawsuit

and

John Hancock involved

the same issues and

Accordingly,
against

the

John

Edwards' instant

district court

Hancock,

that

citing

claims

jurisdiction

over

an

"generally

action

involving the same parties and issues has


in another district."

recognized

district

court's order,

remained

pending in
claim had

when

court to
complaint

already been filed

Pacesetter Systems, Inc. v. Medtronic,


_______________________
__________

Inc., 678 F.2d 93, 94-95 (9th Cir. 1982).


___

negligence

against

Edwards' claims

doctrine of federal comity which permits a district


decline

the

the same parties.

dismissed
the

both

At the time of the

apparently Edwards'

the
been

Massachusetts
dismissed as

contract claim

suit, although

his

time-barred.

See
___

Edwards, supra, 973 F.2d 1027.


_______ _____
Edwards does not appear to challenge this
court

ruling in

his

brief on

appeal.

In

district

light of

"the

-14-

settled appellate rule


some effort

at

that issues

. .

developed argumentation

. unaccompanied
.

. .

are

by

deemed

waived," United States v. Zannino, 895 F.2d 1, 17 (1st Cir.),


_____________
_______
cert. denied, 494 U.S. 1082 (1990), we will not consider this
____________
issue.

Claims Against First American


_____________________________

This court lacks appellate jurisdiction to consider


Edwards' appeal from the district court's ruling transferring
Edwards'
Title
U.S.C.

claims

against defendant-appellant

First American

Insurance Co. to the District of Nevada pursuant to 28


1404(a).

It

is well-settled that

such a transfer

order under

1404(a) is an interlocutory order and therefore

is not appealable as a final judgment.

Codex Corp.
___________

v. Milgo
_____

Electronic Corp., 553 F.2d 735, 737 (1st Cir.), cert. denied,
________________
____________
434

U.S. 860

certificate

(1977).
for

Since

Edwards

interlocutory

has not

appeal

under

obtained
28

U.S.C.

1292(b), we lack jurisdiction over this aspect of his appeal.


In any event, even if we had jurisdiction, we would
affirm the
stated
under

district court's transfer ruling

in the district court's


unusual

circumstances

for the reasons

March 23, 1993


would

we

order.

disturb a

Only

district

court's exercise of discretion in ordering a transfer under


1404(a).

Id.
__

Certainly no

such circumstances exist

here,

-15-

given the undisputed


Edwards'

claims

ranches are

facts that

occurred

the events

primarily

in Nevada, and relevant

will be readily available in Nevada.

in

giving rise

Nevada, the

to

Saval

documents and witnesses

Conclusion
__________

We

affirm the district

motion for reconsideration.


viewed as

a Fed. R. Civ.

the judgment, the

court's denial of Edwards'

As the district court stated, if


P. 59(e) motion to

motion was untimely because

more than ten days after entry of judgment.


59(e).

alter or amend

If viewed as

a Fed.

R. Civ. P.

it was served

Fed.

R. Civ. P.

60(b) motion,

the

motion stated no possible basis for relief from judgment.


We have considered all of Edwards'

other arguments

and find them meritless.


The request of Hawkins

and Hawkins, Rhodes & Sharp

that sanctions, including attorneys' fees, be awarded against


Edwards is denied.
______
The judgment of the district court is affirmed.
________

-16-