Linehan v. Harvard University, 29 F.3d 619, 1st Cir. (1994)
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3d 619
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished
opinions may be cited only in related cases.
Denis Martin LINEHAN, Plaintiff, Appellant,
v.
HARVARD UNIVERSITY, Defendant, Appellee.
No. 93-2311
United States Court of Appeals,
First Circuit.
June 9, 1994.
Appeal from the United States District Court for the District of
Massachusetts [Hon. A. David Mazzone, U.S. District Judge ]
Denis M. Linehan on brief pro se.
Allan A. Ryan, Jr., on brief for appellee.
D.Mass.
AFFIRMED.
Before Torruella, Cyr and Stahl, Circuit Judges.
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 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, Sec. 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, Sec.
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). 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, Sec. 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, Sec. 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).
6
(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." 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 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 Sec. 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 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
10
The posture of this case does not require us to address other apparent infirmities
in plaintiff's complaint.
11
Accordingly, the judgment below is affirmed.
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
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
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)
