MEMORANDUM AND ORDER
The Plaintiff has returned to this Court with a new federal civil rights theory nine months after I dismissed his first law suit, which involved a state law conversion claim against the same Defendants based upon the same set of underlying facts, for lack of subject matter jurisdiction. In the nine-month period between the dismissal of his first suit and the commencement of his second, the applicable three-year statute of limitations as to both his conversion and his civil rights claims ran out. As a consequence, the Plaintiff seeks refuge in the Massachusetts one-year renewal statute and argues that, having returned to the court before the protection of the renewal statute lapsed, he can benefit from an extended statute of limitations. The Defendants have moved to dismiss. I find that while the Massachusetts renewal statute can, as a general proposition, function to extend the statute of limitations for § 1983 actions, it may not do so here because the new federal civil rights theory does not present a “new action for the same cause” as the original conversion claim I dismissed.
I. BACKGROUND
Pro se Plaintiff, Albert Henry Corliss, alleges that on or about May 3, 2001 a towing company improperly towed his 1988 Nissan pick-up truck from the Watuppa Indian Reservation in Fall River on the instructions of the Fall River Police Department. Mr. Corliss first learned that his vehicle had been towed, as opposed to stolen, when he received a written notice dated June 30, 2001 from the towing company. The written notice stated that the vehicle was towed at the request of the Fall River Police Department. It is unclear precisely when Mr. Corliss received this letter, but it was certainly before December 26, 2001 because on that date he composed a letter to the towing company referencing the June 30, 2001 notice.
Mr. Corliss filed his first suit based on these facts on April 27, 2004.
See Corliss v. Levesque Auto Services, Inc.,
No. 04-cv-10834-DPW. The Plaintiff sought relief against the towing company (Levesque Auto Services, Inc.), the Fall River Police Department, and Does 1-10 under Mass. Gen. Laws ch. 266, § 120D for conversion. Mr. Corliss identified the damages as equal to the fair market value of his truck ($1500) at the time of the conversion and any other costs that the Court may deem appropriate. In a Memorandum and Order issued October 13, 2005, I found neither diversity nor federal question jurisdiction over that essentially state law dispute and accordingly granted the Fall River
On July 5, 2005, the Plaintiff filed the present lawsuit in this Court against the City of Fall River (the “City”) and Does 1-10, but not against Levesque Towing, seeking relief under 42 U.S.C. § 1983 for what he now styles as a violation of his First Amendment right to peaceably assemble based on the towing incident. He does not attempt to renew the conversion claim. The Plaintiff is seeking recovery of his goods, damages and an end to what he calls the institutionalized behavior by the City which he claims has effectively deprived the Nemasket Troy Indian Tribe of the peaceful enjoyment of their deeded reservation. The City has moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim, arguing that the applicable statute of limitations has run.
II. DISCUSSION
A. Standard of Review Under 12(b)(6)
Under Fed.R.Civ.P. 12(b)(6), a court may only dismiss a complaint “if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.”
Lalonde v. Textron, Inc.,
I recognize that I must hold a
pro se
plaintiffs allegations “to less stringent standards than formal pleadings drafted by lawyers.”
Haines v. Kerner,
B. The Basic Statute of Limitations
The statute of limitations applicable to an action for conversion under Massachusetts law is Mass. Gen. Laws ch. 260, § 2A, which provides that: “Except as otherwise provided, actions of tort, actions of contract to recover for personal injuries, and actions of replevin shall be commenced only within three years next after the cause of action accrues.”
See Stark v. Advanced Magnetics, Inc.,
50 Mass.App. Ct. 226, 232,
As a matter of state law, Mr. Corliss’ tort claim accrued at the time he was
By contrast, Mr. Corliss’ § 1983 action, considered separately, was not filed within the appropriate statute of limitations period after the civil rights claim accrued. The question of when a § 1983 cause of action accrues is a matter of federal law. Case law dictates that the accrual period begins in § 1983 actions “when the plaintiff knows or has reason to know of the injury which is the basis of the action.”
Street,
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-barred because his original action was dismissed for a “matter of form” (lack of subject matter jurisdiction) and that the present action is a “new action for the same cause” filed within one year after my dismissal of the first action on October 13, 2004.
1.
Does the Renewal Statute Apply?
— If Mr. Corliss had brought a suit in state court against the same defendants
This renewal result as to § 1983 actions follows from the reasoning the Supreme Court used identifying the statute of limitations for § 1983 action. In reaching the conclusion that federal courts must apply the basic state statute of limitations to § 1983 claims, the Court held that not only is the length of the limitations period to be governed by state law, so too are closely related questions of tolling and application.
Wilson v. Garcia,
Although research has discovered no reported cases in which either federal or state courts have addressed the specific issue of whether this instruction means Mass. Gen. Laws ch. 260, § 32 applies to § 1983 actions, the Tenth Circuit applied the teaching of
Hardin v. Straub
to mean that the applicable Oklahoma state renewal/savings provision, which is “an integral part of a state’s limitations and tolling rules”, should apply to § 1983 actions.
Brown v. Hartshorne Public School District No. 1,
Here, however, the matter is more complex because Mr. Corliss originally brought a state claim on a conversion theory that I dismissed .and now he has brought a federal claim on a civil rights theory that borrows a state law limitation period. The only way that Mr. Corliss’ present action can be saved is if the re
2.
Was the Dismissal of the Previous Case for a Matter of Form?
— In cases considering whether or not a case was dismissed for a “matter of form”, Massachusetts courts have focused on the question of whether or not the dismissal concerned the merits. That is the essence of what is presupposed when addressing what it means to be “a matter of form.”
See generally, Liberace v. Conway,
Case law has also framed the “matter of form” question as involving the, distinguishable inquiry of whether the defendant had actual notice that a court action had been initiated against him within the original statute of limitations period. 2 Id.
Here, I find that my original dismissal did not concern the substance of the question in controversy. Dismissing an action for want of subject matter jurisdiction because it is brought in the wrong court is plainly “a matter of form” within the meaning of Mass. Gen. Laws ch. 260, § 32.
Rodi v. Southern New England School of Law,
Moreover, I find that the only identified defendant in the present suit, the City of Fall River, had actual notice of the first suit and knew Mr. Corliss was resorting to the courts to pursue a claim against the City for the towing incident. Although Mr. Corliss named the Fall River Police Department in his first suit, the City of
I will, however, dismiss this suit against Does 1-10 on this ground. Whoever they are, they were not served in the first suit, so they were not put on notice that Plaintiff sought redress from the towing incident. Mass. Gen. Laws ch. 260, § 32 cannot save any renewed claims against these unnamed and consequently unserved defendants.
3. Does the Current Case Involve the Same Cause as the Previous Case? — In
arguing that I should consider the present § 1983 action as the “same cause” as the conversion claim in the original 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 to contend that “cause” as used in the statute has a broader meaning than “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 England School of Law,
I cannot agree that the conversion action and the § 1983 actions fit the First Circuit’s familial metaphor as “sisters under the skin”. Homely metaphors aside,
3
to accept Plaintiffs contention would require me to stretch the Massachusetts renewal statute beyond its intended purpose of preserving the right to renew what is essentially the same cause of action after curing the procedural defect.
See Coffin,
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,
As a linguistic matter, I observe that while Mass. Gen. Laws ch. 260, § 32 states that a plaintiff “may commence a new action for the same
cause
within one year after the dismissal” — as opposed to “may commence a new action for the same
cause of action
within one year after the dismissal” — the relevant paragraph later states “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). A common sense reading of Mass. Gen. Laws ch. 260, § 32 as a whole establishes that the Legislature intended the initial phrase “a new action” followed by “same cause” and then the phrase “original action” to refer to the term of art “cause of action.” Case law supports this interpretation.
See e.g. Hemric v. Reed and Prince Manufacturing Co.,
Whether a subsequent suit is for the “same cause” as the original suit has been delineated somewhat in the case law. Hemric is one side of the line. There, the Plaintiff argued that while “his present cause of action — a tort claim for damages — is not really the ‘same cause’ as a claim for compensation benefits, ... the Supreme Judicial Court of Massachusetts would interpret § 32 liberally and find that this claim comes within its terms.” Id. The First Circuit rejected the argument concluding “[tjhough we are sympathetic to the plaintiffs plight, we cannot find on these facts that the plaintiffs action was saved by § 32” for several reasons including the fact that the “plaintiffs present cause of action is not the same as the one he pressed in North Carolina.” Id.
On the other side of the line are
Boutiette v. Dickinson,
The circumstances of the present dispute plainly fall on the Hemric rather than the Rodi or Boutiette side of the line. It is true that as in Rodi Mr. Corliss’ two suits “involve the same parties, the same events, [and] the same nucleus of operative facts”, but they cannot be considered the “same causes of action” because they seek to redress different wrongs. In Mr. Corliss’ first suit he sought damages equal to the fair market value of his truck at the time of the conversion and any other costs that the Court might have deemed appropriate for a simple conversion of property. In the present suit Mr. Corliss is seeking not only recovery of his goods and damages, but also the broad civil rights remedy of a court order to stop what he calls the institutionalized behavior on behalf of the City effectively depriving the Nemasket Troy Indian Tribe of the peaceful enjoyment of their deeded reservation contrary to the First Amendment. There are differences of substantial orders of magnitude between the tort of conversion and the First Amendment’s right of assembly. They are differences of kind not degree, as when a constitutional claim tracks a constitutional tort. 5 I conclude that Mr. Corliss’ contention that the towing amounts to an interference with his First Amendment right to peaceably assemble is not a new action for the same cause as an action for simple conversion and I must therefore grant the City of Fall River’s motion to dismiss.
III. CONCLUSION
For the reasons set forth more fully above, the City of Fall River’s motion to dismiss is GRANTED.
Notes
. "[WJhen a cause of action in either contract or tort is based on an inherently unknowable wrong, it accrues when the injured person knows or in the exercise of reasonable diligence should know of the facts giving rise to the cause of action.”
Dinsky v. Town of Framingham,
. There is a suggestion in the case law that "renewal statute[s] [do] not apply where the original action which was dismissed for lack of jurisdiction was brought by plaintiff ... wilfully or with great negligence and not in good faith.”
See generally
C.T. Drescsler, Annotation,
Statute permitting new action after failure of original action commenced within period of limitation,
. The arresting sororal allusion, which gave rise to such rhetorical flourishes during the argument of the motion as references to the "DNA” of the legal theories, is appropriately subject to Cardozo’s caution that "[mjeta-phors in the law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.”
Berkey v. Third Avenue Railway Co.,
. I note that the plaintiff in Rodi also filed a new Mass. Gen. Laws ch. 93A claim in the Massachusetts action. Neither the parties nor the court considered whether the new ch. 93A claim could be considered as the "same cause” under Mass. Gen. Laws ch. 260, § 32 because the defendants did not challenge that the claim was filed within the four year statute of limitations for ch. 93A actions.
. I recognize that the Supreme Court has said that "[a]lmost every § 1983 claim can be favorably analogized to more than one of the ancient common-law forms of action.”
Wil-sonv. Garcia,