Klunder v. Brown University

United States Court of Appeals
For the First Circuit
No. 13-1769
JOE KLUNDER,
Plaintiff, Appellant,
v.
BROWN UNIVERSITY; RUTH SIMMONS, in her individual and
official capacities; CARLA HANSEN, in her individual and
official capacities; MARGARET KLAWUNN, in her individual
and official capacities; TERRY ADDISON, in his individual
and official capacities; J. ALLEN WARD, in his individual
and official capacities; RICHARD BOVA, in his individual and
official capacities; PHILIP GRUPPUSO, in his individual and
official capacities; DAVID KERTZER, in his individual and
official capacities; YOLANDA CASTILLO-APPOLLONIO, in her
individual and official capacities,
Defendants, Appellees.
ROBERT ENOS, in his individual and official capacities,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.
Leon A. Blais, with whom Blais & Parent, was on brief for
appellant.
Jeffrey S. Michaelson, with whom Michaelson & Michaelson, was
on brief for appellees.
February 3, 2015
-2-
TORRUELLA, Circuit Judge. Plaintiff-Appellant Joe
Klunder was removed from Brown University1 and suspended for three
semesters after a number of students and staff submitted complaints
regarding Klunder's behavior. In response, Klunder filed an
eleven-count complaint against Brown University and numerous
individuals associated with Brown and its police department
(collectively, "Appellees"). At the heart of Klunder's complaint
are allegations that Appellees' handling of his disciplinary
proceeding and his removal from campus violated both his
constitutional rights (actionable through 42 U.S.C. § 1983) and
Rhode Island state law. The district court ultimately entered
judgment in favor of Appellees on all eleven claims, and Klunder
now appeals. He contends that the district court erred by: (1)
finding that Brown University was not a state actor subject to suit
under 42 U.S.C. § 1983; (2) allowing Appellees' motion to amend
their answer to include a statute of limitations defense; and (3)
ignoring a Rhode Island tolling statute which would have brought
Klunder's claims within the applicable three-year statute of
limitations. Finding all of Klunder's arguments meritless, we
affirm.
1
The corporation's full legal name is "Brown University in
Providence in the State of Rhode Island and Providence
Plantations," but we will refer to it as it is commonly referred --
as either "Brown" or "Brown University."
-3-
I. Background
A. Factual background
In the fall of 2003, Klunder traveled from his family
home in California to Rhode Island, where he began attending Brown
as a freshman. The transition was not an easy one for Klunder, who
claims to have struggled with underlying emotional conditions, the
effects of his medications, and a perceived culture clash between
his conservative upbringing in California and the liberal
university setting at Brown.
During the spring semester of 2005, Brown began to
receive a number of complaints about Klunder's behavior towards
students and staff. First, Carla Hansen, an Associate Dean of
Student Life at Brown, reported an incident with Klunder in her
office in April 2005.2 According to her report, she had a number
of concerns about the interaction and was uncomfortable with
Klunder's remarks about her physical appearance and with his
intrusive questions about the nature of her physical relationship
with her same-sex partner.3
Then, in May of 2005, two Brown staff members reported
encountering Klunder in a restaurant. Both women said they felt
2
As Associate Dean of Student Life, Dean Hansen approved academic
extensions. She is also a licensed social worker with a private
psychotherapy practice.
3
According to Dean Hansen, Klunder said he knew "what it is like
when I am kissing my girlfriend, and I feel my chest against her
breasts, but what does it feel like for you with your girlfriend?"
-4-
uncomfortable when Klunder interrupted their conversation to ask if
they were having "man trouble." Klunder then reportedly
volunteered unsolicited information about a drunken phone call he
had made recently to a former girlfriend during which he evaluated
her skill at kissing. One of the staffers reported that this was
her second run-in with Klunder, who had made inappropriate comments
on the previous occasion as well.
After receiving these complaints, Associate Dean of
Student Life Terry Addison wrote to Klunder to notify him that the
complaints would be the subject of a hearing upon Klunder's return
to campus in the fall of 2005. Klunder, however, elected not to
return that fall due to unspecified family matters. He eventually
returned to Brown in the fall of 2007, at which point Brown began
to receive new complaints about Klunder's behavior.
One student employee of Brown reported that Klunder
approached her to describe, unsolicited, his views on the proper
subordinate role of women and a maneuver he used to trick women
into making out with him. Then, on September 10, 2007, four
students reported having a particularly disturbing conversation
with Klunder. According to their reports, Klunder approached the
unfamiliar students and began by complaining about "that black
[fraternity] guy" who had been particularly noisy the night before.
After admitting to using methamphetamine, cocaine, and Adderall,
Klunder allegedly stated that he did not think that he could
-5-
control himself if disturbed by noisy students again. He
hypothesized that it might be strange to return to campus after a
suspension if he were to stab a fellow student, but that he could
plead diminished capacity to avoid serious criminal charges.
Klunder informed the group that he had repeatedly "beat the shit"
out of his father, and he proceeded to advise the students that if
they shot someone in California, they should do it on their own
property, or drag the body there after the fact, in order to get a
reduced punishment.
After receiving these additional complaints, Dean Addison
sent Klunder a second notice saying that new complaints had been
received and that an investigation would take place. At the same
time, Margaret Klawunn, the Associate Vice President for Campus
Life/Dean for Student Life, issued an emergency letter stating that
to ensure the safety of students and the community, Klunder would
be barred from campus effective September 12, 2007, on an interim
basis.
At a meeting with Brown administrators on September 12,
2007, Klunder was told of his removal from campus. Dean Addison
escorted Klunder to his dormitory so he could pack his things.
Afterwards, the pair were joined by Sergeant Robert Enos of the
Brown University Police Department and Dean J. Allen Ward. Klunder
alleges that he was ordered into the campus police vehicle driven
by Enos and was taken to a nearby hotel. He claims that Dean Ward
-6-
told him that he could not return to campus or to a public street
neighboring Brown, and instead that he should remain at the hotel
until he could fly home the next day.
Brown combined the complaints against Klunder from 2005
and 2007 and scheduled a non-academic disciplinary hearing for
November 15, 2007. Klunder flew back to Rhode Island for the
hearing where he was provided with a non-lawyer advisor to
represent him and a package of materials that would constitute the
evidence against him. At the hearing, Klunder had the opportunity
to present evidence and to call and question witnesses. He
provided a written opening statement but chose not to present any
witnesses in his defense. After the hearing, the hearing officer
provided Vice President Klawunn with his decision. Vice President
Klawunn adopted this recommendation and rendered a formal decision
finding that Klunder had violated Brown's Standards of Conduct and
suspending him for three semesters. Klunder appealed to Brown's
Provost, who affirmed the findings and suspension.4
B. Procedural background
On October 5, 2010, Klunder filed an eleven-count
complaint in the district court of Rhode Island. He alleged, among
other things, that Brown was a person acting under color of state
law within the meaning of 42 U.S.C. § 1983, that Appellees were
4
After serving his suspension, Klunder returned to Brown and
earned his diploma.
-7-
liable for failing to train or supervise its employees, and that
Appellees violated Klunder's constitutional rights under the First,
Fourth, Sixth, and Fourteenth Amendments of the U.S. Constitution.
Other allegations included claims of civil conspiracy, breach of
contract, breach of the covenant of good faith and fair dealing,
intentional infliction of emotional distress, false arrest, false
imprisonment, negligence, and breach of the duty of confidentiality
and loyalty.
The parties subsequently filed cross-motions for summary
judgment as to Count I of the complaint, which called for a
declaratory judgment that Brown qualified as a state actor under
§ 1983. On July 13, 2011, the district court denied Klunder's
motion and granted Appellees' motion for summary judgment in part.
The court reasoned that Brown University is not a state actor but
that it could not grant summary judgment in its entirety because
there was insufficient information to determine whether the Brown
University police force was acting under color of law, thus
bringing it under the ambit of § 1983.
On October 16, 2012, Appellees filed a motion to dismiss
eight of the eleven counts, primarily on statute of limitations
grounds. Because Appellees had overlooked the statute of
limitations defense when preparing their answer to the complaint,
the motion to dismiss was followed three days later by Appellees'
motion to amend the answer to include a statute of limitations
-8-
defense. Over Klunder's objections, the district court granted the
motion to amend. On November 27, 2012, the district court granted
Appellees' motion to dismiss two of the eight counts -- Counts VIII
and IX, which alleged false arrest and false imprisonment,
respectively -- on statute of limitations grounds.
Finally, on May 9, 2013, after additional discovery and
substantial briefing from both parties, the district court granted
Appellees' motion for summary judgment as to all remaining counts.
In a written order, the court explained that Klunder's remaining
§ 1983 claims, his civil conspiracy claim, and his common law
breach of the duty of confidentiality and loyalty claim were not
timely as they were filed outside of the three-year statute of
limitations period. The court also dismissed Klunder's claim of
negligent or intentional infliction of emotional distress, as well
as his breach of contract claim, reasoning that Klunder's
allegations were not properly supported and that Klunder had failed
to demonstrate entitlement to relief. As to Klunder's remaining
claims of negligence and breach of the covenant of good faith and
fair dealing, the district court deemed them waived, noting that
Klunder had failed to respond to Appellees' arguments and failed to
present any argument of his own as to those claims.
The district court denied Klunder's motion for
reconsideration on June 4, 2013, and this timely appeal followed.
-9-
II. Discussion
A. Brown and § 1983
Klunder first challenges the district court's grant of
summary judgment on the ground that Brown University is not a state
actor subject to federal jurisdiction under § 1983.5 We review
this ruling de novo, "scrutiniz[ing] the facts in the light most
agreeable" to Klunder and drawing all reasonable inferences in his
favor. Foote v. Town of Bedford, 642 F.3d 80, 82 (1st Cir. 2011).
"We will affirm only if the record, so viewed, discloses that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law." Santiago v.
Puerto Rico, 655 F.3d 61, 68 (1st Cir. 2011).
Section 1983 "provides a remedy for deprivations of
rights secured by the Constitution and laws of the United States
when that deprivation takes place 'under color of any statute,
ordinance, regulation, custom, or usage, of any State . . . . '"
Estades-Negroni v. CPC Hosp. San Juan Capestrano, 412 F.3d 1, 4
(1st Cir. 2005) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922,
924 (1982) (quoting § 1983)). "To make out a viable section 1983
claim, a plaintiff must show both that the conduct complained of
transpired under color of state law and that a deprivation of
5
The district court never ruled on whether the Brown University
Police Department qualified as a state actor, instead disposing of
those allegations through the statute of limitations. We likewise
decline to make that determination.
-10-
federally secured rights ensued." Santiago, 655 F.3d at 68. It is
the "color of state law" prong that is at issue here.
For Brown to have acted under color of state law, its
"actions must be 'fairly attributable to the State.'" Estades-
Negroni, 412 F.3d at 4 (quoting Lugar, 457 U.S. at 937). "In other
words, it must be fair to characterize [Brown] as [a] state
actor[]." Id. While there is no dispute that Brown is a private
entity, a private party can -- in "rare circumstances" -- be deemed
a state actor for § 1983 purposes if one of three tests is met.
Id. at 4-5.
The first test is the state compulsion test. Under this
test, "a private party is fairly characterized as a state actor
when the state 'has exercised coercive power or has provided such
significant encouragement, either overt or covert, that the
[challenged conduct] must in law be deemed to be that of the
State.'" Id. at 5 (alteration in original) (quoting Blum v.
Yaretsky, 457 U.S. 991, 1004 (1982)). The second test -- the
nexus/joint action test -- deems a private party a state actor
"where an examination of the totality of the circumstances reveals
that the state has 'so far insinuated itself into a position of
interdependence with the [private party] that it was a joint
participant in [the challenged activity].'" Id. (alterations in
original) (quoting Bass v. Parkwood Hosp., 180 F.3d 234, 242 (5th
Cir. 1999)). Finally, under the public function test, "a private
-11-
party is viewed as a state actor if the plaintiff establishes that,
in engaging in the challenged conduct, the private party performed
a public function that has been 'traditionally the exclusive
prerogative of the State.'" Id. (quoting Blum, 457 U.S. at 1005).
Though Klunder never references it by name, his arguments
implicate the public function test. Focusing almost entirely on
Brown's charter, Klunder argues that Brown is a body politic which
was delegated governmental power and authority by England, and thus
qualifies as a state actor.6
Klunder is correct that Brown's charter defines it as a
"body corporate and politic," but he misunderstands the term's
import. Black's Law currently defines a body politic as "[a] group
of people regarded in a political (rather than private) sense and
organized under a common governmental authority." Black's Law
Dictionary 198 (9th ed. 2009). However, when Brown's charter was
established in the late 1700s, the "phrase was used to mean
corporations, both private and public." Will v. Mich. Dep't of
State Police, 491 U.S. 58, 69 (1989); see also Trs. of Dartmouth
Coll. v. Woodward, 17 U.S. (4 Wheat.) 518, 524, 657, 701 (1819)
(finding that Dartmouth College was a private corporation despite
being defined in its charter as a "body corporate and politic").
6
We need not address the question of whether actions by colonial
England could establish that an institution is a "state actor"
under the United States Constitution because Klunder's arguments
about Brown's charter fail on their own terms.
-12-
Indeed, Rhode Island still interprets the term to include private
corporations. See, e.g., Doe v. Gelineau, 732 A.2d 43, 45 n.2, 46
& n.5 (R.I. 1999) (establishing the Roman Catholic Bishop of
Providence as a business corporation that "subsists as a body
politic under a special denomination, which is regarded in law as
having a personality and existence distinct from that of its
several members"); Pardey v. Boulevard Billiard Club, 518 A.2d
1349, 1354 (R.I. 1986) ("[A]rtificial [persons] are such as are
created and devised by human laws for the purposes of society and
government, which are called corporations or bodies politic."
(quoting 1 Blackstone, Commentaries *123)); Wing v. Slater, 35 A.
302, 303 (R.I. 1896) (stating that a corporation is a body
politic).
While we assume arguendo that a body politic may be a
state actor, we agree with the district court that the designation
is not determinative but rather that "the facts and circumstances
particular to the specific corporate entity" determine whether a
corporate body politic is a private corporation or a state actor
subject to federal jurisdiction under § 1983. See also Kennelly v.
Kent Cnty. Water Auth., 89 A.2d 188, 191 (R.I. 1952)
("Notwithstanding that [the statute creating the Kent County Water
Authority] describes the board as a 'body politic,' . . . and
declares that in exercising its powers it 'will be performing an
essential governmental function,' such language by itself is not
-13-
effective to clothe the Authority with the distinguishing
characteristics of a municipal or quasi-municipal corporation.").
Here, the facts and circumstances make clear that Brown
University is not performing a public function that has been
"traditionally the exclusive prerogative of the State," thus
transforming it into a state actor. Brown's charter grants Brown
"full liberty, power, and authority . . . to found a College or
University within [Rhode Island], for promoting the liberal arts
and universal literature." Brown University, The Charter of Brown
University with Amendments and Notes 8 (1945), available at
http://www.brown.edu/about/administration/corporation/sites/brown
.edu.about.administration.corporation/files/uploads/charter-of-br
own-university.pdf (hereinafter "Brown's Charter"). Education,
especially secondary and collegiate education, is not, and never
has been, exclusively maintained by the state. See Rendell-Baker
v. Kohn, 457 U.S. 830, 842 (1982) (holding that the education of
maladjusted high school students, although a public function, is
not the exclusive prerogative of the state); Berríos v. Inter Am.
Univ., 535 F.2d 1330, 1333 (1st Cir. 1976) ("Higher education is
not generally regarded as exclusively a function 'traditionally
associated with sovereignty.'"); cf. City of Pawtucket v. Sundlun,
662 A.2d 40, 50 (R.I. 1995) ("It is thus clear that the General
Assembly's plenary and exclusive power over public education in
-14-
Rhode Island has not changed since the adoption of the State
Constitution in 1842." (emphasis added)).
And while Klunder focuses on Brown's authority to
legislate, to "regulate, order, and govern the same," Brown's
Charter at 8, and to "make, enact and publish all such laws,
statutes, regulations, and ordinances, with penalties," id. at 14,
this authority is clearly limited to Brown's self-governance to
maintain itself as an educational institution. For example, a full
reading of the paragraph from which Klunder selectively quotes
makes obvious that the phrase "the same" in Brown's authority to
"regulate, order, and govern" refers to Brown's "full liberty,
power, and authority . . . to found a College or University within
this Colony, for promoting the liberal arts and universal
literature." See id. at 8. Moreover, while the charter permits
Brown to convene "two branches" in order to "make, enact and
publish all such laws, statutes, regulations, and ordinances, with
penalties," id. at 13-14, this ability is limited to "the
successful instruction and government of said College or
University," id. at 14.
Thus, contrary to Klunder's assertions, the charter does
not broadly delegate legislative responsibility to Brown. Cf.
Dartmouth Coll., 17 U.S. at 631-32, 636, 638 (finding that
Dartmouth's ability to govern itself and act to promote its
educational purpose did not render it a public institution).
-15-
Klunder's related argument that Brown's disciplinary
system was a delegation of judicial governmental functions is
likewise faulty. As a general matter, private schools are run
privately, without governmental interference in the schools'
internal administration. See Asociación de Educación Privada de
P.R., Inc. v. García-Padilla, 490 F.3d 1, 15 (1st Cir. 2007)
("Thus, Rule 11 interferes with autonomous decisionmaking by
private schools and intrudes upon their freedom to pursue their
academic objectives without interference from the government.");
see also Zelman v. Simmons-Harris, 536 U.S. 639, 701 n.9
(2002)(Souter, J., dissenting) (dissenting on a separate issue and
noting -- without disagreement by the majority -- that private
schools "are autonomously managed without any interference from the
. . . State"). We see no reason that this autonomy should exclude
internal disciplinary measures and proceedings. See Krohn v.
Harvard Law Sch., 552 F.2d 21, 24 (1st Cir. 1977) (finding that the
receipt of state financial assistance, the regulation by a public
accreditation council, and the authority of that council to oversee
disciplinary procedures "were insufficient attributes of government
involvement to render the university's disciplinary proceedings
'state action' for section 1983 purposes"); see also Doe v. Heck,
327 F.3d 492, 523 (7th Cir. 2003) ("The right of parents to
discipline their children . . . preclude[s] state officials from
interfering with the right of parents . . . to delegate the
-16-
authority to [discipline their children] to private school
officials . . . ."); Albert v. Carovano, 851 F.2d 561, 571 (2d Cir.
1988) ("Hamilton's decision to suspend the appellants 'ultimately
turn[ed] on . . . [a] judgment made by [a] private part[y]
according to professional standards that were not established by
the state.' It thus cannot be state action." (alterations in
original) (internal citation omitted)).
Thus, Brown's discipline of Klunder in no way qualifies
as judicial delegation by the state.
Because neither private education, corporate self-
governance, nor internal discipline qualifies as state action, and
because there has been no delegation of any governmental functions
to Brown -- either at the time of Brown's charter or in the last
250 years -- Brown cannot be classified as a private party
performing a public function that has been "'traditionally the
exclusive prerogative of the State.'" See Estades-Negroni, 412
F.3d at 5 (quoting Blum, 457 U.S. at 1005). With no action
"'fairly attributable to the State,'" Brown is not acting under
color of state law, and thus Klunder has failed to show that Brown
is subject to federal jurisdiction under § 1983. See id. at 4
(quoting Lugar, 457 U.S. at 937).
This conclusion is supported by our decision in Krohn,
which, contrary to Klunder's assertions, is highly analogous. In
Krohn, we were confronted with the question of whether Harvard Law
-17-
School was subject to federal jurisdiction under § 1983. Finding
that it was not, we held that
[Krohn] has failed to show a sufficient
present day relationship between Harvard and
the Commonwealth to treat the school as a
public institution subject to federal
jurisdiction in a 42 U.S.C. § 1983 suit. To
hold otherwise would serve only to disrupt the
less anciently established balance of rights
and duties Harvard assumes as a private
educational institution in Massachusetts.
. . . Harvard has been for at least one
hundred years and continues to be treated as a
private educational institution in the whole
range of its legal and educational relations
and activities by both the private and public
sectors in Massachusetts. It is considered by
all reasonable persons to be a private
educational institution . . . .
Krohn, 552 F.2d at 23. Like Harvard's relationship with
Massachusetts, Brown's relationship with Rhode Island in no way
suggests that Brown should be treated as a public institution.
Brown was founded by private citizens and with private funds, and,
like Harvard, has historically been and presently is treated as a
private educational institution by both the private and public
sectors. Moreover, Harvard, like Brown, is defined in its charter
as a body politic. Compare The Charter of 1650, in The Development
of Harvard University since the Inqauguration [sic] of President
Eliot, 1869-1929 6 (Samuel Eliot Morison ed., 1930), available at
http://abel.harvard.edu/history/charter/index.html ("one body
politique and Corporate in Lawe"), with Brown's Charter at 7 ("one
body corporate and politic").
-18-
Seeing no meaningful distinction between Brown in the
present case and Harvard in Krohn, we agree with the district court
that Brown University is not a state actor subject to federal
jurisdiction under § 1983. Brown's motion for partial summary
judgment was properly granted.
B. The Statute of Limitations
The district court disposed of the remainder of Klunder's
claims7 on statute of limitations grounds. On appeal, Klunder
raises two arguments. First, he alleges that the district court
improperly granted Appellees' motion to amend the answer to include
a statute of limitations defense. Second, he argues that even if
the answer was properly amended, his claims were not time barred
due to the tolling provision in Rhode Island General Laws section
9-1-18. We address each in turn.
1. The Motion to Amend
We review the district court's decision to grant
Appellees' motion to amend its answer to include the statute of
7
Klunder's brief "asks that this court vacate all judgments of
dismissal," which would seemingly include Count V (Breach of
Contract), Count VI (Breach of the Covenant of Good Faith and Fair
Dealing), Count VII (Infliction of Emotion Distress), Count X
(Negligence), and Count XI (Breach of the Duty of Confidentiality
and Loyalty). The district court granted Brown's motion for
summary judgment on Counts V, VI, VII, and XI (with respect to the
statutory component) based on the merits and on Count X based on
waiver. Klunder's brief makes no arguments as to these counts, so
to the extent he intended to appeal those rulings, his claims are
waived. See Wei Feng Liu v. Holder, 714 F.3d 56, 61 (1st Cir.
2013) ("[Petitioner] presents no argument as to why the decisions
below were in error, and the issue is thus waived.").
-19-
limitations defense for abuse of discretion. Interstate Litho
Corp. v. Brown, 255 F.3d 19, 25 (1st Cir. 2001). That decision
"will be left untouched" so long as "'the record evinces an
arguably adequate basis for the court's decision.'" Juárez v.
Select Portfolio Servicing, Inc., 708 F.3d 269, 276 (1st Cir. 2013)
(quoting Hatch v. Dep't for Children, 274 F.3d 12, 19 (1st Cir.
2001)).
Rule 15 of the Federal Rules of Civil Procedure governs
amendments to pleadings, and it instructs courts to "freely give
leave" to amend. Fed. R. Civ. P. 15(a)(2). As the Supreme Court
explained,
In the absence of any apparent or declared
reason -- such as undue delay, bad faith or
dilatory motive on the part of the movant,
repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice
to the opposing party by virtue of allowance
of the amendment, futility of amendment, etc.
-- the leave sought should, as the rules
require, be "freely given."
Foman v. Davis, 371 U.S. 178, 182 (1962); see also Interstate Litho
Corp., 255 F.3d at 25; Acosta-Mestre v. Hilton Int'l of P.R., Inc.,
156 F.3d 49, 51 (1st Cir. 1998).
We find no error in the district court's decision to
permit the amendment. In reviewing a district court's decision on
whether or not to grant an amendment, we routinely focus our
analysis on the prejudice to the non-moving party. See, e.g.,
Interstate Litho Corp., 255 F.3d at 25-26 ("[Plaintiff] . . . does
-20-
not identify any prejudice . . . . Indeed, [Plaintiff's] trial
preparation on the merits issues could hardly have been much
different . . . ."); Hayes v. New Eng. Millwork Distribs., Inc.,
602 F.2d 15, 19 (1st Cir. 1979) ("[C]ourts may not deny an
amendment solely because of delay and without consideration of the
prejudice to the opposing party . . . ."). Most often, this
prejudice takes the form of additional, prolonged discovery and a
postponement of trial. See, e.g., Acosta-Mestre, 156 F.3d at 52("[T]he prejudice to Hilton resulting from a re-opening of
discovery with additional costs, a significant postponement of
trial, and a likely major alteration in trial strategy and tactics
. . . fully support the district court's ruling [to deny a motion
for leave to amend]."); Stepanischen v. Merchs. Despatch Transp.
Corp., 722 F.2d 922, 933 (1st Cir. 1983) ("[T]he addition of new
claims would likely have required additional discovery and caused
further delay."); Johnston v. Holiday Inns, Inc., 595 F.2d 890, 896
(1st Cir. 1979) (affirming denial of motion to amend where five
years had passed since the complaint was filed, a memorandum
opinion and judgment had already been entered, and the defendants
"would be prejudiced by the difficulty and expense required in
locating essential witnesses for trial").
Here, Klunder fails to establish prejudice. Though he
claims that "knowledge of the defense of statute of limitations
would have impacted Plaintiff's discovery strategy," he fails to
-21-
explain how. To the contrary, the record suggests the opposite.
At the time the motion to amend was filed, discovery was ongoing.
Klunder had only taken two depositions, and subsequently took
others, and thus had ample opportunity -- almost two months -- to
explore the statute of limitations question. Additionally, nothing
prevented Klunder from utilizing the various discovery tools
afforded to all litigants -- interrogatories, requests for
production of documents, subpoenas, etc. -- to obtain information
to rebut the defense. And, if Klunder really did feel that he
lacked sufficient time to explore the issue, he could have sought
extensions of the discovery and summary judgment deadlines. That
he declined to employ any of these options is his own decision and
not the fault of Brown.
Given Rule 15's liberal policy and the lack of
demonstrable prejudice to Klunder, we cannot say that the district
court abused its discretion in granting the motion to amend.8
8
Though the decision on whether or not to grant a motion to amend
is a case-specific, fact-based determination, it is telling that
when faced with this question in similar circumstances, a number of
our sister circuits have also found it proper for the district
court to grant a motion to amend to include a statute of
limitations defense. See Bylin v. Billings, 568 F.3d 1224, 1230
(10th Cir. 2009) (finding that the district court did not abuse its
discretion in permitting the amendment to include a statute of
limitations defense where plaintiffs "received adequate notice of
the statute-of-limitations defense and had ample opportunity to
respond"); Bireline v. Seagondollar, 567 F.2d 260, 262 (4th Cir.
1977) ("We find no clear error in the district court's allowance of
defendants' motion to amend their answer to assert the applicable
statute of limitations."); Emich Motors Corp. v. Gen. Motors Corp.,
229 F.2d 714, 717-18 (7th Cir. 1956) (finding no abuse of
-22-
2. The Tolling Statute
Klunder next argues that even if Appellees' answer was
properly amended to include the statute of limitations defense, the
defense did not bar his claims due to the tolling provision in
Rhode Island General Laws section 9-1-18. We review the district
court's decisions on this issue de novo. See Montalvo v. González-
Amparo, 587 F.3d 43, 46 (1st Cir. 2009); López-González v.
Municipality of Comerío, 404 F.3d 548, 551 (1st Cir. 2005).
Section 9-1-18 provides, in relevant part, that
[i]f any person against whom there is or shall
be cause for any action, as enumerated in this
chapter, in favor of a resident of the state,
shall at the time the cause accrues be outside
the limits of the state, or being within the
state at the time the cause accrues shall go
out of the state before the action is barred
by the provisions of this chapter, and does
not have or leave property or estate in the
state that can be attached by process of law,
then the person entitled to the action may
commence the action, within the time before
limited, after the person has returned into
the state in such a manner that an action may,
with reasonable diligence, be commenced
against him or her by the person entitled to
the action . . . .
R.I. Gen. Laws § 9-1-18. In support of his argument, Klunder
relies on Cottrell v. Kenney, a 1903 Rhode Island Supreme Court
case which holds that, if applicable, the effect of the tolling
statute is that "a new time is fixed at which the statute begins to
discretion where district court permitted an amendment to include
a statute of limitations defense after the case was reversed and
remanded on appeal).
-23-
run . . . when the defendant comes or returns into the state." 54
A. 1010, 1012 (R.I. 1903). Cottrell, however, provides no guidance
on the statute's applicability. For that, one must look to Rouse
v. Connelly, 444 A.2d 850 (R.I. 1982). There, the Rhode Island
Supreme Court adopted the trial justice's finding that section
9-1-18 provides "special protection" to Rhode Island plaintiffs who
were injured by defendants not amenable to process. Id. at 851.
It explained that if a "defendant is amendable to suit by
substituted service," the statute does not apply and the
limitations period is not tolled. Id. The court emphasized that
any other interpretation "would permit the unnecessary and
indefinite postponement of lawsuits . . . , a result clearly
contrary to sound principles of judicial administration." Id. at
851-52.
Under this framework, Klunder's argument fails for
numerous reasons. First, the statute only protects Rhode Island
plaintiffs. See id. Though Klunder claims he was a resident of
Rhode Island at the time the causes of action accrued (and indeed
he very likely may have been one), there is no evidence in the
record to support (or reject) this contention. The burden is on
Klunder to establish the applicability of section 9-1-18, so his
failure to support his claim of residency is fatal. See Kelly v.
Marcantonio, 187 F.3d 192, 198 (1st Cir. 1999) ("[P]laintiff-
appellants bear the burden of proving the applicability of the
-24-
tolling provisions contained in [R.I. Gen. Laws] §§ 9-1-19 and 9-1-
20."); Bonilla-Avilés v. Southmark San Juan, Inc., 992 F.2d 391,
393 (1st Cir. 1993) ("Since the plaintiffs have the burden to
support their claim that the statute was tolled, their failure to
introduce into the record the letters upon which they based that
claim was fatal to that claim."). Second, there is no evidence in
the record that any Appellees were not amenable to process. See
Rouse, 444 A.2d at 851. To the contrary, the record suggests that
all Appellees were served and appeared before the district court
without any difficulty. It was Klunder's obligation to establish
otherwise, and, once again, he failed to do so. See Kelly, 187
F.3d at 198; Bonilla-Avilés, 992 F.2d at 393.
Because section 9-1-18 does not toll Klunder's claims, he
was required to file suit within three years of, at the latest,
September 12, 2007, for the § 1983, civil conspiracy, and breach of
the duty of confidentiality and loyalty claims, and September 13,
2007, for the false arrest and false imprisonment claims.9 He did
not do so. Instead, Klunder waited until October 5, 2010, three
weeks after the statute of limitations ran. Klunder's claims,
therefore, are time barred, and the district court properly
disposed of them on Appellees' motions to dismiss and for summary
judgment.
9
The parties agree that the applicable statute of limitations for
Klunder's claims is three years and that September 12 and 13, 2007,
are the relevant dates.
-25-
III. Conclusion
In sum, we find no errors by the district court. Brown
University is not subject to federal jurisdiction under § 1983
because neither its ability to enact internal statutes and
regulations in furtherance of its function as a private educational
institution nor its ability to discipline students for violations
of its internal policies constitute state action. Additionally,
the district court did not abuse its discretion in granting Brown's
motion to amend its answer to include a statute of limitations
defense in light of the lack of demonstrable prejudice to Klunder.
Having been properly added to Brown's answer, the defense bars
Klunder's claims, as they were filed outside of Rhode Island's
three-year statute of limitations and Rhode Island General Laws
section 9-1-18 is inapplicable to toll the claims.
AFFIRMED.
-26-