397 F.Supp.2d 260 (2005) | Cited 5 times | D. Massachusetts | November 1, 2005


The Plaintiff has returned to this Court with a new federalcivil rights theory nine months after I dismissed his first lawsuit, which involved a state law conversion claim against thesame Defendants based upon the same set of underlying facts, forlack of subject matter jurisdiction. In the nine-month periodbetween the dismissal of his first suit and the commencement ofhis second, the applicable three-year statute of limitations asto both his conversion and his civil rights claims ran out. As aconsequence, the Plaintiff seeks refuge in the Massachusettsone-year renewal statute and argues that, having returned to thecourt before the protection of the renewal statute lapsed, he canbenefit from an extended statute of limitations. The Defendantshave moved to dismiss. I find that while the Massachusettsrenewal statute can, as a general proposition, function to extendthe statute of limitations for § 1983 actions, it may not do sohere because the new federal civil rights theory does not present a "new action for the same cause" as the original conversionclaim I dismissed.


Pro se Plaintiff, Albert Henry Corliss, alleges that on orabout May 3, 2001 a towing company improperly towed his 1988Nissan pick-up truck from the Watuppa Indian Reservation in FallRiver on the instructions of the Fall River Police Department.Mr. Corliss first learned that his vehicle had been towed, asopposed to stolen, when he received a written notice dated June30, 2001 from the towing company. The written notice stated thatthe vehicle was towed at the request of the Fall River PoliceDepartment. It is unclear precisely when Mr. Corliss receivedthis letter, but it was certainly before December 26, 2001because on that date he composed a letter to the towing companyreferencing the June 30, 2001 notice.

Mr. Corliss filed his first suit based on these facts on April27, 2004. See Corliss v. Levesque Auto Services, Inc., No.04-cv-10834-DPW. The Plaintiff sought relief against the towingcompany (Levesque Auto Services, Inc.), the Fall River PoliceDepartment, and Does 1-10 under Mass. Gen. Laws ch. 266, § 120Dfor conversion. Mr. Corliss identified the damages as equal tothe fair market value of his truck ($1500) at the time of theconversion and any other costs that the Court may deemappropriate. In a Memorandum and Order issued October 13, 2005, Ifound neither diversity nor federal question jurisdiction over that essentially state law dispute and accordingly granted theFall River Police Department's motion to dismiss the action inits entirety pursuant to Fed.R.Civ.P. 12(b)(1).

On July 5, 2005, the Plaintiff filed the present lawsuit inthis Court against the City of Fall River (the "City") and Does1-10, but not against Levesque Towing, seeking relief under42 U.S.C. § 1983 for what he now styles as a violation of his FirstAmendment right to peaceably assemble based on the towingincident. He does not attempt to renew the conversion claim. ThePlaintiff is seeking recovery of his goods, damages and an end towhat he calls the institutionalized behavior by the City which heclaims has effectively deprived the Nemasket Troy Indian Tribe ofthe peaceful enjoyment of their deeded reservation. The City hasmoved for dismissal pursuant to Fed.R.Civ.P. 12(b)(6) forfailure to state a claim, arguing that the applicable statute oflimitations has run.


A. Standard of Review Under 12(b)(6)

Under Fed.R.Civ.P. 12(b)(6), a court may only dismiss acomplaint "if it is clear that no relief could be granted underany set of facts that could be proved consistent with theallegations." Lalonde v. Textron, Inc., 369 F.3d 1, 6 (1st Cir.2004) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514(2002)). Where the motion for dismissal is premised on therunning of the applicable limitations period, the pleader's allegations must leave "no doubt that [the] asserted claim istime-barred." Jorge v. Rumsfel, 404 F.3d 556, 561 (1st Cir.2005) (citing LaChapelle v. Bershire Life Ins. Co.,142 F.3d 507, 509 (1st Cir. 1998)).

I recognize that I must hold a pro se plaintiff'sallegations "to less stringent standards that formal pleadingsdrafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520(1972). "Nonetheless, pro se plaintiffs must comply with theapplicable procedural and substantive rules of law, and dismissalremains appropriate when the court lacks jurisdiction over theclaims or the parties and when the complaint fails to evensuggest an actionable claim." Overton v. Torruela,183 F.Supp.2d 295, 303 (D.Mass. 2001). See also Lefebvre v.Commissioner of Internal Revenue Service, 830 F.2d 417, 419 (1stCir. 1987).

B. The Basic Statute of Limitations

The statute of limitations applicable to an action forconversion under Massachusetts law is Mass. Gen. Laws ch.260, § 2A, which provides that: "Except as otherwise provided, actionsof tort, actions of contract to recover for personal injuries,and actions of replevin shall be commenced only within threeyears next after the cause of action accrues." See Stark v.Advanced Magnetics, Inc., 50 Mass.App.Ct. 226, 232 (2000)(holding that actions for conversion must be bought within thethree years provided by Mass. Gen. Laws ch. 260, § 2A). The same provision applies to this § 1983 action because "[t]he SupremeCourt directs federal courts adjudicating civil rights claimsunder 42 U.S.C. § 1983 to borrow the statute of limitationsapplicable to personal injury actions under the law of the forumstate. Where a state has more than one statute of limitationsthat applies to personal injury actions, a federal court shouldborrow the state's general or residual personal injury statute oflimitations. In Massachusetts, that statute is Mass. Gen. Lawsch. 260, § 2A[.]" Street v. Vose, 936 F.2d 38, 39 (1st Cir.2001) (internal citations omitted).

As a matter of state law, Mr. Corliss' tort claim accrued atthe time he was injured. Dinsky v. Town of Framingham,386 Mass. 801, 803 (1982). Since Mr. Corliss filed his first suit onApril 27, 2004, chronologically less than three years after thetowing and a fortiori less than three years after heacknowledged receiving notice of the towing, Mr. Corliss' firstaction was plainly filed within the statute of limitationsperiod.1

By contrast, Mr. Corliss' § 1983 action, considered separately,was not filed within the appropriate statute of limitations period after the civil rights claim accrued. Thequestion of when a § 1983 cause of action accrues is a matter offederal law. Case law dictates that the accrual period begins in§ 1983 actions "when the plaintiff knows or has reason to know ofthe injury which is the basis of the action." Street,936 F.2d at 40 (citing Torres v. Superintendent of Police,893 F.2d 404, 407 (1st Cir. 1990)). See also Nieves-Marquez v. PuertoRico, 353 F.3d 108, 119-20 (1st Cir. 2003) (A claim accrues"when facts supportive of a civil rights action are or should beapparent to a reasonably prudent person similarly situated."(citation omitted)). Here, the § 1983 cause of action accrued, atthe latest, when Mr. Corliss received the written noticeinforming him that his vehicle had been towed at the request ofthe Fall River Police Department. Since Mr. Corliss must havereceived the written notice before December 26, 2001, this actionshould have been filed by December 26, 2004, at the latest, to betimely according to Mass. Gen. Laws ch. 260, § 2A. Because Mr.Corliss did not file the present suit until July 5, 2005, theonly way this suit can survive the Defendants' motion is if the §1983 action comes within the scope of the Massachusetts renewalstatute.

C. The Renewal Statute

Mass. Gen. Laws ch. 260, § 32, the renewal statute provides: If an action duly commenced within the time limited in this chapter is dismissed for insufficient service of process by reason of an unavoidable accident or of a default or neglect of the officer to whom such process is committed or is dismissed because of the death of a party or for any matter of form, or if, after judgment for the plaintiff, the judgment of any court is vacated or reversed, the plaintiff or any person claiming under him may commence a new action for the same cause within one year after the dismissal or other determination of the original action, or after the reversal of the judgment; and if the cause of action by law survives the executor or administrator or the heir or devisee of the plaintiff may commence such new action within said year.(emphasis supplied)

Mr. Corliss contends that the present suit is not time-barredbecause his original action was dismissed for a "matter of form"(lack of subject matter jurisdiction) and that the present actionis a "new action for the same cause" filed within one year aftermy dismissal of the first action on October 13, 2004.

1. Does the Renewal Statute Apply? — If Mr. Corliss hadbrought a suit in state court against the same defendants forconversion after I dismissed his original federal suit, the statecourt would have been obligated to allow the action, at leastwith respect to timeliness, based on Mass. Gen. Laws ch.260, § 32. See e.g. Liberace v. Conway, 31 Mass.App.Ct. 40, 42-43(1991). Similarly, if Mr. Corliss had originally brought his §1983 action based on a First Amendment violation and I haddismissed it last year on the basis of some matter of form and hewas now bringing the § 1983 action again having cured that defect, Iwould also be obligated to allow the action, at least withrespect to timeliness, based on Mass. Gen. Laws ch. 260, § 32.See e.g. Hakala v. Deutsche Bank AG, 343 F.3d 111, 115-16(2nd Cir. 2003).

This renewal result as to § 1983 actions follows from thereasoning the Supreme Court used identifying the statute oflimitations for § 1983 action. In reaching the conclusion thatfederal courts must apply the basic state statute of limitationsto § 1983 claims, the Court held that not only is the length ofthe limitations period to be governed by state law, so too areclosely related questions of tolling and application. Wilson v.Garcia, 471 U.S. 261, 269 (1985). "In virtually all statutes oflimitations the chronological length of the limitation period isinterrelated with provisions regarding tolling, revival andquestions of application." Id. at 269, n. 17 citing Johnsonv. Railway Express Agency Inc., 421 U.S. 454, 464 (1975). Seealso Hardin v. Straub, 490 U.S. 536, 538 (1989) (finding thatsince the chronological length of the limitation period isinterrelated with provisions regarding tolling, revival, andquestions of application in virtually all statutes oflimitations, courts "should not unravel state limitations rulesunless their full application would defeat the goals of thefederal statute at issue.").

Although research has discovered no reported cases in which either federal or state courts have addressed the specific issueof whether this instruction means Mass. Gen. Laws ch. 260, § 32applies to § 1983 actions, the Tenth Circuit applied the teachingof Hardin v. Straub to mean that the applicable Oklahoma staterenewal/savings provision, which is "an integral part of astate's limitations and tolling rules", should apply to § 1983actions. Brown v. Hartshorne Public School District No. 1,926 F.2d 959, 962 (10th Cir. 1991). The Seventh and Eighth Circuitshave come to the same conclusion regarding the applicability ofthe Illinois and Arkansas renewal savings provisions to § 1983actions. Beck v. Caterpillar Inc., 50 F.3d 405, 406 (7th Cir.1995) (concluding that "it only makes sense to apply the state'stolling and savings provisions, for they are interrelated"); andMiller v. Norris, 247 F.3d 736, 739 (8th Cir. 2001) ("Because aplaintiff in a state action that is governed by the three-yeartime limitation in Ark. Code Ann. § 16-56-105(3) may claim thebenefits provided by the saving statute, a plaintiff in a § 1983action, which is governed by the same statute of limitations,also may do so.") I conclude that the Massachusettsrenewal/savings provision enacted in Mass. Gen. Laws ch.260, § 32 applies to § 1983 actions brought in federal court because itis equally interrelated with the length of the applicable statuteof limitations.

Here, however, the matter is more complex because Mr. Corlissoriginally brought a state claim on a conversion theory that I dismissed and now he has brought a federal claim on acivil rights theory that borrows a state law limitation period.The only way that Mr. Corliss' present action can be saved is ifthe renewal statute applies the same limitation rules to hiscivil rights action as to his original action for conversion.Thus, this suit can only be saved if the original action wasdismissed, as § 32 directs, for a "matter of form" and if the"new action" is "for the same cause". I now turn to those twoquestions.

2. Was the Dismissal of the Previous Case for a Matter ofForm? — In cases considering whether or not a case was dismissedfor a "matter of form", Massachusetts courts have focused on thequestion of whether or not the dismissal concerned the merits.That is the essence of what is presupposed when addressing whatit means to be "a matter of form." See generally, Liberace v.Conway, 31 Mass.App.Ct. 40, 44 (1991).

Case law has also framed the "matter of form" question asinvolving the distinguishable inquiry of whether the defendanthad actual notice that a court action had been initiated againsthim within the original statute of limitations period.2Id. Here, I find that my original dismissal did not concern thesubstance of the question in controversy. Dismissing an actionfor want of subject matter jurisdiction because it is brought inthe wrong court is plainly "a matter of form" within the meaningof Mass. Gen. Laws ch. 260, § 32. Rodi v. Southern New EnglandSchool of Law, 389 F.3d 5, 18 (1st Cir. 2004) referencingCiampa v. Beverly Airport Commission, 38 Mass.App.Ct. 974,974-75 (1995). See, e.g., Loomer v. Dionne, 338 Mass. 348,351-52 (1959) (plaintiff incorrectly brought the personal injuryaction in the Superior Court instead of the District Court);Boutiette v. Dickinson, 54 Mass.App.Ct. 817 (2002) (plaintiffbrought an action in the District Court seeking equitable reliefunavailable in that forum); Carroll v. City of Worcester,42 Mass.App.Ct. 628 (1997) (plaintiff had brought an action in theDistrict Court instead of the Superior Court, which has exclusive jurisdictionof tort actions brought against a public employer).

Moreover, I find that the only identified defendant in thepresent suit, the City of Fall River, had actual notice of thefirst suit and knew Mr. Corliss was resorting to the courts topursue a claim against the City for the towing incident. AlthoughMr. Corliss named the Fall River Police Department in his firstsuit, the City of Fall River's Corporation Counsel filed themotion to dismiss and accompanying memorandum in that action onbehalf of the Police Department. Plainly, the City had awarenessof Plaintiff's objections to the role of its entities in thetowing incident. The City cannot obtain dismissal arguing lack ofnotice of the original claim.

I will, however, dismiss this suit against Does 1-10 on thisground. Whoever they are, they were not served in the first suit,so they were not put on notice that Plaintiff sought redress fromthe towing incident. Mass. Gen. Laws ch. 260, § 32 cannot saveany renewed claims against these unnamed and consequentlyunserved defendants.

3. Does the Current Case Involve the Same Cause as thePrevious Case? — In arguing that I should consider the present §1983 action as the "same cause" as the conversion claim in theoriginal suit for the purpose of Mass. Gen. Laws ch. 260, § 32,Mr. Corliss points to the fact that the statute uses the term "same cause" not "same cause of action". From this he appears tocontend that "cause" as used in the statute has a broader meaningthan "cause of action." In this connection, he argues that being"sister" claims "under the skin" is sufficient under Mass. Gen.Laws ch. 260, § 32, relying upon Rodi v. Southern New EnglandSchool of Law, 389 F.3d 5, 18 (1st Cir. 2004). I observe,however, that Rodi found the original and subsequent lawsuitswere "sisters under the skin" because "they involve[d] the sameparties, the same events, the same nucleus of operative facts,and the same causes of action.") Id. (emphasis supplied). Mr.Corliss also invokes the purpose of the renewal statute, which heterms "basic fairness," observing that the Supreme Judicial Courtwrote almost two centuries ago in describing an earlier versionof the renewal provision that the provision was "a remedialstatute to be given a liberal construction" in favor of theplaintiff. Coffin v. Cottle, 16 Pick. 383, 385-86 (1835).

I cannot agree that the conversion action and the § 1983actions fit the First Circuit's familial metaphor as "sistersunder the skin". Homely metaphors aside,3 to acceptPlaintiff's contention would require me to stretch theMassachusetts renewal statute beyond its intended purpose of preserving the right torenew what is essentially the same cause of action after curingthe procedural defect. See Coffin, 16 Pick. at 385-86;Lawrence v. Emma, 2002 WL 31424326, * 2 (Mass.App.Ct. 2002)("[U]nder Mass. Gen. Laws ch. 260 § 32, if the defendants'motions to dismiss for defects in the service of process had beenallowed, the plaintiff would have had the right to recommencethe action."(emphasis supplied)); Jameson v. Levoie, 3Mass.L.Rptr. 597 (Mass.Super. 1995) (holding that Mass. Gen.Laws ch. 260 § 32 permits "re-filing within one year"). To doso would essentially repudiate the purposes of statutes oflimitation. Burnett v. New York Central Railroad Co.,380 U.S. 424, 428 (1965). Burnett explained that Statutes of limitations are primarily designed to assure fairness to defendants. Such statutes promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them. Moreover, the courts ought to be relieved of the burden of trying stale claims when a plaintiff has slept on his rights.Id. at 428 (1965) (internal citation and quotation omitted). Tobe sure, this "policy of repose, designed to protect defendants,"may be outweighed "where the interests of justice requirevindication of the plaintiff's rights" in cases where theplaintiff has not slept on those rights. Id. State renewal or "savings statutes" are one of the "methods for preserving causesof action which would otherwise be barred by the passing of alimitation period" in cases where the plaintiff has simply fileda case that is dismissed for curable procedural reasons. Id. at431.

As a linguistic matter, I observe that while Mass. Gen. Lawsch. 260, § 32 states that a plaintiff "may commence a new actionfor the same cause within one year after the dismissal" — asopposed to "may commence a new action for the same cause ofaction within one year after the dismissal" — the relevantparagraph later states "and if the cause of action by lawsurvives the executor or administrator or the heir or devisee ofthe plaintiff may commence such new action within said year."(emphasis supplied). A common sense reading of Mass. Gen. Lawsch. 260, § 32 as a whole establishes that the Legislatureintended the initial phrase "a new action" followed by "samecause" and then the phrase "original action" to refer to the termof art "cause of action." Case law supports this interpretation.See e.g. Hemric v. Reed and Prince Manufacturing Co.,739 F.2d 1, 3 (1st Cir. 1984), where the Court used the phrase "causeof action" and "cause" interchangeably.

Whether a subsequent suit is for the "same cause" as theoriginal suit has been delineated somewhat in the case law.Hemric is one side of the line. There, the Plaintiff arguedthat while "his present cause of action — a tort claim for damages —is not really the `same cause' as a claim for compensationbenefits, . . . the Supreme Judicial Court of Massachusetts wouldinterpret § 32 liberally and find that this claim comes withinits terms." Id. The First Circuit rejected the argumentconcluding "[t]hough we are sympathetic to the plaintiff'splight, we cannot find on these facts that the plaintiff's actionwas saved by § 32" for several reasons including the fact thatthe "plaintiff's present cause of action is not the same as theone he pressed in North Carolina." Id.

On the other side of the line are Boutiette v. Dickinson,54 Mass. App. Ct. 817, 819 (2002) and Rodi where the MassachusettsAppeals Court and the First Circuit, respectively, rejected thedefendants' arguments that the original and subsequent claimswere not for the same causes of action. In Boutiette,54 Mass. App. Ct. at 819, the Court was "not persuaded by the defendant'sattempt to portray the Municipal District Court action asdifferent in kind from the District Court action, on the groundthat the former sought only enforcement of the Texas judgmentwhile the latter asserted the plaintiff's underlying claims. Bothactions sought enforcement of the plaintiff's rights in respectof the same causes of action, and the plaintiff had no reasonprior to the dismissal of the Municipal Court action to assertthe underlying claims in the Massachusetts courts."

Similarly, in Rodi, 389 F.3d at 18, as noted above, the First Circuit concluded that an earlier New Jersey action forclaims including fraudulent inducement, breach of fiduciaryduties, and breach of contract, and the fraudulentmisrepresentation claim in the subsequent Massachusetts actionwere "sisters under the skin" because "they involve the sameparties, the same events, the same nucleus of operative facts,and the same causes of action."4

The circumstances of the present dispute plainly fall on theHemric rather than the Rodi or Boutiette side of the line.It is true that as in Rodi Mr. Corliss' two suits "involve thesame parties, the same events, [and] the same nucleus ofoperative facts", but they cannot be considered the "same causesof action" because they seek to redress different wrongs. In Mr.Corliss' first suit he sought damages equal to the fair marketvalue of his truck at the time of the conversion and any othercosts that the Court might have deemed appropriate for a simpleconversion of property. In the present suit Mr. Corliss isseeking not only recovery of his goods and damages, but also thebroad civil rights remedy of a court order to stop what he callsthe institutionalized behavior on behalf of the City effectively depriving the Nemasket Troy Indian Tribe of the peacefulenjoyment of their deeded reservation contrary to the FirstAmendment. There are differences of substantial orders ofmagnitude between the tort of conversion and the FirstAmendment's right of assembly. They are differences of kind notdegree, as when a constitutional claim tracks a constitutionaltort.5 I conclude that Mr. Corliss' contention that thetowing amounts to an interference with his First Amendment rightto peaceably assemble is not a new action for the same cause asan action for simple conversion and I must therefore grant theCity of Fall River's motion to dismiss.


For the reasons set forth more fully above, the City of FallRiver's motion to dismiss is GRANTED.

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