251 F.

2d 123

Clement J. DELMAN, Plaintiff, Appellant,

v.
FEDERAL PRODUCTS CORPORATION, Defendant,
Appellee.
No. 5204.

United States Court of Appeals First Circuit.

Heard Oct. 1, 1957.
Decided Jan. 9, 1958.

Thomas W. Pearlman, Providence, R.I., for appellant.

Wilfrid E. McKenna, Providence, R.I., with whom Bernard P. Campbell,
Providence, R.I., was on the brief, for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN,
Circuit judges.
WOODBURY, Circuit Judge.

The plaintiff-appellant, born Clemente Giuseppe De Lucia but who became by

judicial change of name Clement Joseph Delman, brought this case against the
defendant-appellee in the court below on June 30, 1955, to obtain reinstatement
in employment with seniority, status, pay, insurance, pension and other
benefits, and also for money damages for failure to grant such reinstatement.
He alleged in his original complaint that he was first employed by the
defendant in January, 1941, that he left his employment as a 'gage-toolmaker' in
June, 1944, to enter the armed forces of the United States, that he was
honorably discharged therefrom in June, 1946, and that, being still qualified to
perform the duties of his former position, he applied within ninety days after
his discharge for reemployment but that the defendant refused, and continued to
refuse to reemploy him until May 30, 1955, when it took him on again but at a
lower rate of pay and without the seniority rights and other benefits to which he
was entitled. The defendant promptly moved to dismiss the complaint for
failure to state a claim upon which relief could be granted, and also because the
plaintiff's cause of action had not accrued within six years of the time the action

was brought and because the plaintiff had been guilty of laches. The District
Court granted the motion. Ruling that the six year limitation on the bringing of
actions imposed by 3 of Chapter 510 of the General Laws of Rhode Island,
Revisions of 1938, applied, the court concluded:
2

'Since the complaint shows on its face that the plaintiff's cause of action
accrued not later that September 23, 1946, and this action was not commenced
until June 30, 1955, it is barred by the statute of limitations. Accordingly, the
complaint fails to state a claim upon which relief can be granted. My
conclusions with respect to the statute of limitations makes it unnecessary to
consider the additional ground, urged by the defendant, that the plaintiff's
action is barred by laches.' (136 F.Supp. 244)

Promptly after entry of judgment dismissing his complaint, the plaintiff filed a
motion to vacate the judgment and allow the filing of an amended complaint,
which was granted by the court below. Cf. United States v. Newberry Mfg.
Co., 1 Cir., 1941, 123 F.2d 453, 454. In his amended complaint the plaintiff
expanded the allegations of his original complaint by asserting in substance that
on many occasions during every year from 1946 to the time of his
reemployment in 1955 he went to the defendant's place of business and
requested reinstatement and that on each occasion the defendant acknowledged
its duty to do so, had him fill out applications for reemployment, and promised
to take him back as soon as expansion of its business from the post-war
retraction afforded an opportunity. He further alleged that this conduct of the
defendant, causing him to believe that he would be reemployed, lulled him into
a false sense of security, and also so misled him that he refrained from resorting
to legal proceedings to protect his statutory right to reinstatement in his former
employment. He also alleged that the defendant, by actual misrepresentations,
fraudulently concealed certain facts which if known would disclose that its
failure to reinstate the plaintiff was in violation of the Selective Training and
Service Act of 1940 and subsequent legislation enacted by Congress for the
protection of veterans. Furthermore, there are allegations in the amended
complaint which might be construed as asserting a cause of action for breach of
the contract of employment under which the plaintiff returned to work in May,
1955, although there is no specific prayer for relief with respect to such a cause
of action. This amended complaint, like its predecessor, concluded with a
request for a 'trial by jury on all questions relating to the issue of damages.'

The defendant moved to dismiss this amended complaint but its motion was
denied and so also was the defendant's motion to strike the case from the jury
calendar. The defendant then answered and after numerous preliminary motions
by both parties, including a motion by the plaintiff for trial by the court with an

advisory jury as to the equitable issues presented, which was denied, the court
assigned the case to the non-jury calendar and thereafter trial was had by the
court on the issue of the plaintiff's right to be restored to employment. At the
conclusion of the plaintiff's evidence the defendant moved for dismissal of the
action under Rule 41(b) Fed.Rules Civ.Proc., 28 U.S.C., and the court granted
the motion. In doing so the court said that it made no finding 'at this stage of the
testimony' as to whether or not the defendant's circumstances had so changed as
to make it impossible or unreasonable for it to restore the plaintiff to his old
position or one of like seniority, status and pay,1 but rested its conclusion on
express disbelief of the plaintiff's testimony.
5

It said that it was not satisfied on the testimony that the plaintiff had ever called
at the defendant's plant after November, 1948, or even telephoned the
defendant to inquire about reinstatement, and it also said that it was 'not
convinced that after 1948 this plaintiff had any sincere desire to secure
employment from the defendant corporation.' In concluding its opinion the
court said:

'To summarize, viewing the testimony presented by the plaintiff in the light
most favorable to the plaintiff, I feel that he has failed to prove a claim against
this defendant which entitles him to relief. I further find that his action for
damages is barred by the statute of limitations and his claim for reinstatement
is barred by laches.'

Wherefore, it granted the defendant's motion to dismiss and entered the

judgment for the defendant from which the plaintiff has taken this appeal.

The plaintiff-appellant argues that the allegations in his amended complaint

clearly set out not only a cause of action for failure to restore the plaintiff to his
former position, or one of like seniority, status and pay, and for compensatory
damages for its failure to do so, but also sets out a cause of action for breach by
the defendant of the contract under which the plaintiff accepted reemployment
in May, 1955, and that obviously the later cause of action is not barred by any
statute of limitations. It does not appear that this contention was ever advanced
in the court below. At any rate, that court did not consider it. But whether the
contention is only the after-thought of a disappointed litigant or not, it comes to
nothing for jurisdictional reasons. The plaintiff's cause of action for breach by
the defendant of its contract to employ the plaintiff, if indeed such a cause of
action is alleged, is certainly not one arising under the Constitution, laws or
treaties of the United States but is one arising under state law. Federal
jurisdiction over it must, therefore, rest upon the diversity jurisdiction conferred
by 1332(a)(1) of Title 28 of the United States Code. But jurisdiction under this

section fails, for not only is there no allegation that the required jurisdictional
amount is in controversy, but also it is apparent that the plaintiff and for
jurisdictional purposes the defendant also are both citizens of Rhode Island.
Nor is there pendent jurisdiction over the cause of action for breach of the
contract of employment under the doctrine of Hurn v. Oursler, 1933, 289 U.S.
238, 53 S.Ct. 586, 77 L.Ed. 1148, for that cause of action is not at all the same
as the plaintiff's cause of action for failure to grant reemployment as the acts of
Congress require, and under Hurn v. Oursler (289 U.S. at page 246, 53 S.Ct. at
page 589) pendent federal jurisdiction exists only when 'two distinct grounds in
support of a single cause of action are alleged, one only of which presents a
federal question,' and does not exist when 'two separate and distinct causes of
action are alleged, one only of which is federal in character.'
9

This leaves the plaintiff's action as one to enforce his federally created right to
reemployment and damages resulting from the defendant's refusal to give him
reemployment. Federal jurisdiction is clearly conferred by the statutes which
create the rights, 8(e) of the Selective Training and Service Act of 1940, 54
Stat. 891, and 9(d) of the Universal Military Training and Service Act, formerly
the Selective Service Act of 1948, 62 Stat. 616, 50 U.S.C.A. Appendix 459(d)
(1952), so we turn to the plaintiff's contention that the court below by itself
determining the issue of the defendant's liability to reemploy the plaintiff
deprived him of both his constitutional and his statutory rights to trial by jury
on the issue of damages.

10

The plaintiff's claim for reinstatement in his employment is essentially

equitable in its nature and his claim for damages for failure to reinstate is
essentially legal. These claims were made in a single complaint, but as this
court pointed out in Orenstein v. United States, 1 Cir., 1951,191 F.2d 184, 190,
and confirmed in Chappell & Co. v. Palermo Cafe Co., 1 Cir., 249 F.2d 77, the
fact that separate and distinct equitable and legal claims are joined together in a
single complaint does not necessarily mean that the action at law is a mere
adjunct or appendage of the suit in equity. We need not inquire whether the
language used in the statutory provisions cited in the preceding paragraph
makes the right to damages and appendage to the equitable right to
reinstatement, a matter perhaps open to some question, compare Strelitz v.
Surrey Classics, Inc., D.C.S.D.N.Y.1946, 7 F.R.D. 101, with the criticism
thereof in 5 Moore's Federal Practice (2nd Ed., 1951), 38.24(2), for the court
below treated the plaintiff's claim for damages as distinct from his claim for
reinstatement and separating the claims granted his request for trial by jury on
the claim for damages which is all the plaintiff requested2 and consequently all
he was entitled to under Rule 38(c) F.R.C.P. Then, having separated the
plaintiff's claims, the court in the exercise of its discretionary power to

determine the order of trial, proceeded, apparently without any clear objection
by the plaintiff, to hear the equitable claim first-- see the Orenstein and
Palermo Cafe Co. cases cited above-- even though the determination of that
claim might preclude a determination by a jury of the claim for damages. That
is to say, a decision by the trial court that on the merits the plaintiff was not
entitled to be restored to his position might well also decide that he was not
entitled to damages for failure to give restoration.
11

But, as we have pointed out, the court did not reach the merits of the plaintiff's
equitable claim but found that he was barred from asserting it by laches. And
having so found, it then went on to find on the same evidence that his legal
claim for damages was barred by the Rhode Island statute of limitations. We
think these findings cannot be successfully challenged and that the court's
conclusion is correct.

12

There can be no doubt that the plaintiff waited for years before bringing suit.
Nor can there be any doubt that the court was fully justified in disbelieving the
plaintiff's testimony that every year from 1946 to the time of his reemployment
in 1955 he called upon or telephoned to the defendant to request employment
but, on the contrary, that he never did either after November, 1948, and that
from that time until late in 1954 he had no sincere desire to secure
reemployment. These findings are fully supported by the evidence and are
clearly enough to support the finding that the plaintiff was guilty of laches. His
only escape from the consequences of that finding would be to show that his
reasonable reliance upon a course of conduct pursued by the defendant made it
contrary to the general principles of fair dealing and good conscience for it to
take advantage of the defense of laches. And in this he entirely failed. There is
no evidence whatever of his having been lulled into a false sense of security by
any conduct of the defendant, and the court below so found, saying that on the
evidence viewed in the light most favorable to the plaintiff he had '* * * failed
to sustain the burden of proof imposed upon him by the law to establish that the
defendant was guilty of any conduct whatever subsequent to 1946 which would
estop this defendant from setting up the defense of statute of limitations or the
defense of laches.' Indeed, from the finding that the plaintiff was not in
communication with the defendant from 1948 until late in 1954 it would
necessarily follow that the plaintiff could not have been Misled or lulled into a
false sense of security by anything the defendant did or said.

13

This disposes of the plaintiff's equitable claim for reinstatement in employment,

and would also dispose of his legal claim for damages if that claim is a mere
adjunct or appendage of the equitable one. But that is a question we do not
decide in this case for even if we assume that the claims are separate and

distinct, as the court below treated them, the last quoted finding is dispositive of
the legal claim for damages.
14

Neither the Selective Training and Service Act of 1940 nor the Universal
Military Training and Service Act of 1948 limit the time within which suit must
be brought. And there is no general federal statute of limitations. In this
situation, following the rule established in 1895 by Campbell v. City of
Haverhill, 155 U.S. 610, 15 S.Ct. 217, 39 L.Ed. 280, we invoke the rules of
decision provision now embodied in Title 28 U.S.C 1652, and apply the Rhode
Island statute of limitations. That statute, cited earlier in this opinion, clearly
puts a six-year limitation upon the plaintiff's action for damages, and clearly
that cause of action accrued to the plaintiff more than six years before he saw
fit to bring his action.

15

The defense of laches and the defense of the statute of limitations are different,
in that the former, unlike the latter, does not require the lapse of any fixed
period of time. Thus it could be that an equitable claim for reemployment
would be barred by laches whereas a legal claim for damages for failure to give
reemployment, if separate from the equitable claim, might not be barred by an
applicable statute of limitations. But that is not the situation here for the Rhode
Island statute of limitations has run on the plaintiff's legal claim. The only way
open to the plaintiff to avoid the bar of that statute is by introducing convincing
evidence of the same kind required to avoid the defense of laches, i.e. evidence
that the defendant's conduct made its reliance on the defense of the statute
inequitable or contrary to general principles of good conduct and fair dealing.
The plaintiff had ample opportunity to present such evidence, if he had any, at
the trial of the equitable claim where the matter was fully litigated and decided
adversely to the plaintiff. That decision forecloses the plaintiff's legal claim for
damages by application of the doctrine of res judicata.

16

During the course of the trial the plaintiff's attorney had a subpoena duces
tecum served on certain officers of the defendant, and on the defendant's
objection the court ordered it quashed in accordance with the authority
conferred by Rule 45(b) F.R.C.P. on the ground that there was no excuse for
the plaintiff's delay in seeking the production of the voluminous records
demanded and that under the circumstances the subpoena imposed an
unreasonable burden on the defendant. The record affords ample support for the
court's action.

17

The plaintiff-appellant also contends that the court below erred in denying his
motion for leave to appeal in forma pauperis, and also erred in ordering him to
file a full transcript of the evidence for transmission to this court. Both orders

were issued after entry of the judgment of dismissal and after the plaintiff had
filed his notice of appeal from that judgment. No separate appeals were taken
from the above orders and from this it follows that we have no jurisdiction to
consider these alleged errors.
18

Judgment will be entered affirming the judgment of the District Court without
costs.

See Section 8(b)(B) of the Selective Training and Service Act of 1940, 54 Stat.
890; Section 9(b)(B) of the Universal Military Training and Service Act of
1948, 62 Stat. 615, 50 U.S.C.A.Appendix, 459(b)(B)(1952)

The court's denial of the plaintiff's belated request for an advisory jury on the
equitable issues presents no question on appeal for whether or not the advice of
a jury would be helpful is a matter lying entirely in the discretion of the trial
court