Professional Documents
Culture Documents
__________________
___________________
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.,
Plaintiff-appellant
se appeal from
Title
the remaining
Insurance
Co.
Hawkins,
district court's
G. Edwards,
also appeals
A.
("First
Edwards
ruling transferring
defendant, the
American"), to
First
the
from
Hancock deeds
Nevada owned
As
of trust to
security, Saval
gave
Saval's
1985, at
foreclosed
Hancock's trustee
Saval's ranches.
ranches in
Edwards
John Hancock
In
John
time when
ranches.
by Saval.
through First
on the deeds
American,
of trust
to
represented John
deeds
of trust
to Saval's
ranches expressly
In
First American
preparing for
the foreclosure
excluded these
sale, however,
gas rights
properties to be sold.
the United
States government
foreclosure sale.
purchased
At that sale
the properties
and
acquired
the
properties.
release
of
John Hancock's
interest
in
the
New Hampshire.
The
federal
U.S. then
district
deficiency.
court
in
The Nevada
First American
had
description
foreclosure.
Nevada to
recover
of
settlement agreement
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
the
entered into a
all its
money.
On
January 25,
1991,
Edwards filed
suit in
the
on the
in the notices of
as time-barred, and
merits.
On
September
-3-
this
court
affirmed the
dismissal
of the
proceedings.
contract claim,
Edwards
_______
and remanded
for further
1991 in
Hampshire.
the
District Court
His original
the District
of
New
for First
American's alleged
negligence
added
the other
nine
defendants and
also
added
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.
the
_________________________________________________
-4-
The
against the
John
district
court
dismissed
Edwards'
Hancock
employees
(Pearson, Gordon,
claims
McElwee,
Brown,
jurisdiction
Assuming,
arguendo, that
23,
stated in the
Edwards did
not
--
their
as
distinguished
from
corporate
employer
or
principal,
John
Hancock
--
transacted
business,
owned
There is no dispute
underinclusive
connection
and that
time.
Since
Edwards
description
with the
Nevada
1985
Edwards
of
foreclosure sale
resided in
this is not
moved to
in
-- occurred
in
Massachusetts at
a continuing tort,
New Hampshire
properties
after the
that
foreclosure sale
-5-
does not mean that the alleged tort occurred, in part, in New
Hampshire.
Edwards
argues that
instead
of dismissing
these
bases his
argument on
28 U.S.C.
1631,
is a
want
of jurisdiction,
the
court shall,
district court
if
it is
Some
construction
courts
of
the
. . . to any other
the subject-
in
and
commentators,
the legislative
history
that was
relying
of
have
only when
F.
under
suggested
jurisdiction.
transfer an action
1631,
on
1631
1989);
15 Wright,
Procedure
courts
Miller,
& Cooper,
Federal Practice
-- pointing to the
language of
and
By contrast, other
1631 itself, which
-6-
have
held that
1631 does
permit
a transfer
where
the
(10th
Cir.
1987);
United
States
_______________
v.
American
River
________________
This
need not
do so
is sought under
(which provides
that "[f]or
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
of
1404(a)
of justice, a district
or district
division in
the convenience of
provides that
district in which
of whether
U.S.C.
have been
(which
Regardless
1631, under 28
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
barred,
all statutes
under
applicable,
case.
of
limitations
that might
be
court under
it was
filed.
Force,
_____
725
See, e.g.,
___ ___
F.2d 1160,
at the time
1163
(8th Cir.
1984).
Similarly,
-7-
transfer
the
under either
1404(a) or
68;
the Massachusetts
(5) violation of
has already
negligence was
time before
Consumer Protection
Nevada statutes.
1961-
trade practices
time-barred under
cause of
action for
Massachusetts law
at some
_______
_____
All
for a negligence
less.
The applicable
action is six
years in
limitations period
11.190, 2(c).
for a contract
The applicable
action, or an
action for
-8-
2; six
years in New
11.190,
six or
1(b), 2(c).
5A.
that the
limitations period
an action
disputed appellees'
for an
action under
Nevada
deceptive trade
practices
statutes is
years.
598A.220, 11.220.
strongly suggested, if
expressly held,
of
negligence
action
four
for
accrued
by
Edwards' cause
the
not
time
of
the
Edwards, supra,
_______ _____
accrual date
that his
given no reason,
contract-based
claims
and we see
and
his
none, to
tort-based
on appeal,
moreover, Edwards
In his
expressly accepted
the
his
challenge this
whether
as
reply
brief,
accrual date.
a matter
of
Edwards
does
However, his
Massachusetts,
belatedly
only challenge,
New Hampshire,
or
-9-
action did
not
accrue
until mid-1990,
allegedly cancelled
Saval ranches.
when
the
U.S. Forest
Service
livestock on his
as of
foreclosure sale,
action
a plaintiff
accrues when
attibuted, of
both harm to it
A cause of
has "knowledge,
caused
actual or
cause of such
Mass. 1101,
plaintiff subsequently
792
(1991).
extent
of action.
of injury
action");
375, 376-78
be
Id.
__
("It
known before
rev. den.,
___ ___
The fact
that a
29 Mass.
is not
required that
accrual
See Sorenson v.
_____________
of a
cause
of
Pavlikowski, 94
___________
the
Nev.
-10-
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
Edwards'
these defendants.
of Fed. R. Civ.
original
15, 1991, it
here.
both
any of
complaint
Even if he had
appellees'
the circumstances
briefs
filed -- apply
discuss
this
we note that
point,
despite
back is
permitted by
of limitations applicable
the law
that
provides the
to the action."
None of
any
attempted
to be set forth
provision
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.
of an
amendment
by
action
parties when
Rule 15(c)(2),
new
as required
amendment (A)
the
adding
complaint,
the
to
the
claim
the original
"and, within
relation
be
the
service of the
brought
in
by
the
maintaining a defense on
party
will
not
be
prejudiced
in
or should
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
further
some
any of
complaint within
be sued,
time to
named
of the original
that Edwards
proper party to
later
defendants
received notice
to indicate that
the
deciding at
in addition
to
himself acknowledged as
of his motion to file
First
much in
the amended
-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
also after
he filed
his
issuing a
4(a).
This
summons as
impropriety,
required by
according
to
Fed. R.
Civ. P.
Edwards,
delayed
because Edwards'
All
time-barred
before
June
2, 1992,
service of process on
point.
improperly
was filed.
the
amended
Any subsequent
Even if somehow
prevented
when
Edwards
the district
from
providing
court
these
those
satisfied
circumstances
somehow
Fed.
Civ.
P.
-13-
R.
before
the filing
instant case
of
his
adding claims
amended
complaint in
the
-- Edwards
the District
in
district
court
found
Massachusetts lawsuit
and
Accordingly,
against
the
John
Edwards' instant
district court
Hancock,
that
citing
claims
jurisdiction
over
an
"generally
action
recognized
district
court's order,
remained
pending in
claim had
when
court to
complaint
negligence
against
Edwards' claims
the
dismissed
the
both
apparently Edwards'
the
been
Massachusetts
dismissed as
contract claim
suit, although
his
time-barred.
See
___
ruling in
his
brief on
appeal.
In
district
light of
"the
-14-
at
that issues
. .
developed argumentation
. unaccompanied
.
. .
are
by
deemed
claims
against defendant-appellant
First American
It
is well-settled that
such a transfer
order under
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.
circumstances
we
order.
disturb a
Only
district
Id.
__
Certainly no
here,
-15-
claims
ranches are
facts that
occurred
the events
primarily
in
giving rise
Nevada, the
to
Saval
Conclusion
__________
We
a Fed. R. Civ.
alter or amend
If viewed as
a Fed.
R. Civ. P.
it was served
Fed.
R. Civ. P.
60(b) motion,
the
other arguments
-16-