DocketNumber： 93-1649
Filed Date： 7/8/1994
Status： Precedential
Modified Date： 9/21/2015
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1649
ALFRED F. COTE,
Plaintiff, Appellant,
v.
WAYNE E. VETTER, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
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Before
Cyr, Boudin and Stahl,
Circuit Judges.
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Alfred F. Cote on brief pro se.
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Mark S. Gearreald and Engel, Gearreald & Gardner, P.A. on brief
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for appellees.
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July 8, 1994
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Per Curiam. In 1993, Alfred F. Cote, a New
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Hampshire inmate, filed this action under 42 U.S.C. 1983
claiming that Vetter, a county sheriff, and two deputy
sheriffs, Janvrine and Powers, had manifested
unconstitutional conduct when they executed Cote's
extradition to Illinois on July 22, 1987. The district court
dismissed the suit as untimely. We affirm.
The parties do not dispute that New Hampshire law
applies to this case. Although Cote has attempted to invoke
other statutory limitations periods, New Hampshire's three-
year personal injury statute of limitations, N.H. Rev. Stat.
Ann. (RSA) 508:4, governs this 1983 action. Wilson v.
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Garcia, 471 U.S. 261, 276-80 (1985) (state law limitation
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period, tolling and revival provisions apply). As Cote's
claim arose out of the events surrounding his extradition
from New Hampshire to Illinois on July 22, 1987, the
limitations period under RSA 508:4 expired on July 22, 1991.
Thus, this action, filed on January 26, 1993 in the New
Hampshire federal district court, is barred unless Cote can
take advantage of New Hampshire's saving statute, RSA 508:10.
The statute, entitled "Second Suit", provides:
If judgment is rendered against
the plaintiff in an action
brought within the time limited
therefor, or upon a writ of
error thereon, and the right of
action is not barred by the
judgment, a new action may be
brought thereon in one year
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after the judgment.
While the statute is "designed to insure a diligent suitor
the right to a hearing in court until he reaches a judgment
on the merits," Adams v. Sullivan, 110 N.H. 101, 105, 261
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A.2d 273, 276 (1970), "[o]nly where the cause has become
barred by the general limitation [RSA 510:4] does a plaintiff
have occasion to rely upon RSA 508:10." Hughes v. Hebert,
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106 N.H. 176, 178, 207 A.2d 432, 433 (1965). Thus, when a
timely action is later dismissed "for reasons not barring the
right of action or determining it on its merits," id., a new
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action, arising out of the same transaction or occurrence,
may be brought within a year of the judgment, providing the
general limitation period will or has run.
According to Cote, this complaint was first filed
against these defendants, and others, in federal district
court in the Northern District of Illinois on June 1, 1988.
On February 8, 1989, the court granted defendants' motion to
dismiss concluding, inter alia, that it lacked personal
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jurisdiction over Vetter, Powers and Janvrine because they
had not performed any acts in Illinois. Cote v. Kontos, et
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al., No. 88-C-4751, Memorandum Opinion and Order (N.D. Ill.
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Feb. 7, 1989). Cote's appeal from that judgment was
voluntarily dismissed under Fed. R. App. P. 42(b) on August
21, 1990.
Clearly, when judgment entered in the Illinois
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federal district court on February 7, 1989, the three-year
limitation period had not yet expired, precluding operation
of the saving statute. Even if we were to consider the date
of the voluntary dismissal of the appeal, August 21, 1990, as
the operative "judgment" under RSA 508:10, Cote would have
only derived an additional year to revive his suit, that is,
until August 21, 1991.1 Thus, under either scenario, Cote's
action is untimely and was properly dismissed.
Cote attempts to avoid this result by pointing to a
third and intervening 1983 action which he filed in the New
Hampshire district court in April 1990, within the three-year
limitation period. Cote v. Rockingham County, et al., No.
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90-CV-152. Vetter, Powers, and Janvrine were not originally
named defendants in that action. Cote was allowed to file an
amended complaint naming them. However, on September 2,
1992, that amended complaint was dismissed by a magistrate-
judge and the case proceeded against the original defendants.
Cote has represented in this complaint, and argues here,
that, in recommending dismissal of the amended complaint in
No. 90-CV-152, the district court had "ordered" Cote to
remove and refile a separate complaint against the
defendants. However, no such "order" ever issued. The
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1. The defendants-appellees argue that the dismissal in
Illinois for lack of personal jurisdiction would not, as a
matter of law, implicate RSA 508:10. However, we see no need
to reach that issue.
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district court's November 4, 1992 clarification of its
September 2, 1992 recommendation states in part:
The relevant issues in this
case do not include, and will
not include, any issues that
have been finally determined
during proceedings in the
United States District Court
for the Northern District of
Illinois. Plaintiff is free to
file any other actions in this
court as he wishes; however,
each will be separately
screened and each will be dealt
with without reference to the
others. The court cannot
estimate the time it will take
to deal with newly-filed
actions. Such a determination
will depend on many intervening
factors.
Judgment entered on May 16, 1994, and while Cote may appeal
the dismissal of these defendants in that case, the time for
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suing them in this complaint had clearly expired on January
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26, 1993. We have no occasion to decide whether RSA 508:10
or any other tolling provision would apply to stop the clock
and defeat a potential statute of limitations defense in
Cote's intervening action.
We have considered appellant's remaining arguments
and find them without merit.
Affirmed.
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