United States Court of Appeals

For the First Circuit

No. 11-1412

JAMESON C. RANDALL,

Plaintiff, Appellant,

v.

LACONIA, NH,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Landya B. McCafferty, U.S. Magistrate Judge]

Before

Boudin, Howard, and Thompson,

Circuit Judges.

Christopher J. Seufert and Seufert Professional Association

for appellant.

Robert C. Dewhirst and Devine, Millimet & Branch, P.A. for

appellee.

May 8, 2012
THOMPSON, Circuit Judge. Federal law requires home

sellers to alert potential home buyers to the presence of leadbased paint hazards. The City of Laconia, New Hampshire

sidestepped this requirement when it sold Jameson Randall his

house. Some years later, after learning that lead-based paint was

present in his home, Randall filed suit. The sole question is

whether his lawsuit is time-barred. We agree with the district

court that it is, and therefore affirm. 

BACKGROUND

In 1998, the appellee, the City of Laconia (the "City" or

"Laconia"), purchased a house located at 192 Elm Street in Laconia

(the "property" or "home"). The property was an older house, built

before 1978. The City purchased the property, which at the time

was a group home, to provide extra storage and parking for the

adjacent branch of the Laconia Public Library (the "Library"). In

connection with the transaction, the seller turned over a "Lead

Paint Inspection Report," which detailed the results of a 1996

inspection performed by Alpha Lead Consultants, Inc. (the "Alpha

report"). The Alpha report indicated that lead-based paint was

present in the home. After the purchase, the Library maintained a

copy of the Alpha report in its files.

Some years later the City decided to sell the property

and in 2003, the appellant, Jameson Randall, contracted to purchase

it. When Randall signed the purchase and sale agreement he

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received a blank, pre-printed, standard lead-based paint disclosure

form titled "Disclosure of Information on Lead-Based Paint and

Lead-Based Paint Hazards for Housing Sales" (the "disclosure

form"). The disclosure form included a section titled "Seller's

Disclosure," in which the seller (the City) was to indicate whether

it had any knowledge of lead-based paint hazards1 in the home and

whether it had any reports or records pertaining to the same. The

disclosure form also provided for a "Purchaser's Acknowledgment"

that included an acknowledgment that the buyer (Randall) had a tenday window in which to conduct a lead-based paint hazard

inspection. Randall and his buyer's agent signed the blank

disclosure form. The buyer's agent then informed Randall that the

City would complete the disclosure form later. However, the City

never completed the form nor did it turn over the Alpha report.2

Randall opted not to have his own inspection performed.3 

1 The disclosure form and relevant statute use the terms

"lead-based paint" and "lead-based paint hazards" in conjunction. 

For simplicity's sake, we will just say "lead-based paint hazards." 

2 It is not entirely clear why the City did not complete the

disclosure form or divulge the Alpha report, though there is some

suggestion that the Alpha report might have been housed in a

separate Library file as opposed to in a City file. In any event,

there is no indication that the omissions were intentional and

Randall does not allege any fraudulent conduct on the part of the

City. 

3 Randall says he thought there was no need for an inspection

because his wife, during a tour of the property, was told by a

Library employee that any lead-based paint hazard issues would have

been taken care of when the former owner, the group home, applied

for licensing. The City disputes that the employee made this

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Despite not having received the completed disclosure form

from the City, Randall went ahead and closed on the property,

taking title on July 22, 2003. He then moved into the home with

his wife and two daughters. In 2006, the couple had a third child,

a son. In 2008, tests taken at the son's two-year physical

revealed an elevated blood lead level. As a result, the state of

New Hampshire sent a representative to the property to perform an

inspection for lead. The inspection (the results of which were

given to Randall in an October 13, 2008 letter) revealed lead-based

paint hazards in the home. Elimination or control of the hazards

was recommended.

On February 9, 2010 - approximately six and one-half

years after he purchased the property - Randall filed this lawsuit. 

The sole count in the complaint alleged that the City had violated

42 U.S.C. § 4852d, which requires the disclosure of lead-based

paint hazards in connection with the sale of homes built before

1978. Though at the time of filing suit Randall had not had any

removal or abatement of the lead-based paint performed, he alleged

that he had received an estimate of approximately $126,000 to

perform the work and that he would not have purchased the home if

he had known about the hazards. As part of the discovery process,

Randall propounded a request for document production on the City. 

remark. It is not necessary for us to resolve this factual

dispute. 

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The City responded on May 28, 2010 and one of the documents that it

turned over was the Alpha report. This was the first time Randall

had seen the report.

A few months later, the City moved for summary judgment,

alleging that Randall's cause of action was barred by the

applicable three-year state statute of limitations. The City's

position was that Randall's cause of action accrued when he took

title to the property on July 22, 2003 and therefore his suit,

filed six and one-half years later, came too late. The district

court agreed and granted summary judgment in favor of the City. 

Randall appealed.

ANALYSIS

We review a grant of summary judgment on statute of

limitations grounds de novo, construing the record in the light

most favorable to the non-movant. See Montalvo v. Gonzalez-Amparo,

587 F.3d 43, 46 (1st Cir. 2009). We affirm if "there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(a).

i. Residential Lead-Based Paint Hazard Reduction Act

Randall filed suit under the Residential Lead-Based Paint

Hazard Reduction Act (the "Act"), 42 U.S.C. §§ 4851-4856, and in

particular under § 4852d, which allows for a private cause of

action for three times the amount of any damages incurred by the

buyer, id. § 4852d(b)(3). The Act provides for the promulgation of

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regulations that require a seller to "disclose to the purchaser .

. . the presence of any known lead-based paint, or any known leadbased paint hazards, in such housing and provide to the purchaser

. . . any lead hazard evaluation report available to the seller." 

Id. § 4852d(a)(1)(B). Such regulations were promulgated. See 24

C.F.R. § 35.88(a) (Housing and Urban Development); 40 C.F.R. §

745.113(a) (Environmental Protection Agency).

The City does not attempt to argue that it met these

requirements, nor does it appear that it truthfully could make this

argument. It is undisputed that prior to selling Randall the

property the City did not complete the disclosure form, turn over

the Alpha report, or otherwise inform Randall about the lead-based

paint hazards in the home. The only question is whether the City's

non-compliance should be excused on timeliness-of-suit grounds. 

ii. Applicable Statute of Limitations

42 U.S.C. § 4852d does not contain a limitations period

and therefore a question below was what limitations period applied. 

There was not much debate. The City argued that the New Hampshire

three-year statute of limitations for personal actions governed,

Randall did not disagree, and the district court followed suit

applying the state statute. See Randall v. City of Laconia, No.

10-cv-50-LM, 2011 WL 1085679, at *1-2 (D.N.H. Mar. 24, 2011)

(applying N.H. Rev. Stat. Ann. § 508:4). This approach is in

accord with our practice of applying "the most analogous statute of

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limitations in the state where the action was brought" when a

federal statute does not include a statute of limitations. 

Greenwood ex rel. Estate of Greenwood v. N.H. Pub. Utils. Comm'n,

527 F.3d 8, 13 (1st Cir. 2008) (citing Wilson v. Garcia, 471 U.S.

261, 266 (1985)).

Now, for the first time, Randall asserts that instead of

looking to the three-year New Hampshire limitations statute, the

district court should have applied the federal four-year catch-all

statute of limitations for civil actions. See 28 U.S.C. § 1658(a)

(stating that, "[e]xcept as otherwise provided by law, a civil

action arising under an Act of Congress . . . may not be commenced

later than 4 years after the cause of action accrues"). Randall

admits that he would fare no better under a four-year, as opposed

to a three-year, limitations period should we agree with the

district court that his cause of action accrued when he purchased

the property (six and one-half years before filing suit). Perhaps

for this reason, Randall only briefly raises this issue in a

footnote and provides no supporting argumentation. His perfunctory

treatment, as well as his raising this argument for the first time

on appeal, waives the issue. See Farris v. Shinseki, 660 F.3d 557,

562 n.5 (1st Cir. 2011) (declining to consider an issue that was

"never raised before the district court, nor briefed or argued" on

appeal). Consequently we need not get into the merits of this

particular statute of limitations debate. We assume for purposes

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of this decision that the three-year New Hampshire limitations

period applies to Randall's action. 

iii. The Separate Cause of Action Argument

Before we go any further, we wish to dispose of an

argument of Randall's. It is a meritless argument that

unfortunately for Randall permeates his entire position on appeal. 

In a nutshell Randall characterizes the City's failure to turn over

the Alpha report as a separate and distinct violation from the

City's other alleged violations of the Act (e.g., not completing

the disclosure form, not providing a lead information pamphlet, not

including a lead warning statement in the sales contract). And, in

Randall's mind, each such violation is its own cause of action

complete with its own statute of limitations. So, while he now

concedes that all of the City's "other" violations are barred by

the statute of limitations, Randall argues that his cause of action

for the City's failure to turn over the Alpha report survives. 

Relying on the discovery rule, Randall's stance is that accrual did

not occur until May 2010 when he learned that the Alpha report

existed after the City turned it over in discovery. Randall claims

he could not have discovered the factual basis for his claim until

this time.

As we said though, this argument is founded on a faulty

thesis, namely that the City's failure to turn over the Alpha

report is a stand-alone violation of the Act with its own

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limitations period. We have found no support for this position,

nor does Randall point us to any. Perhaps the closest he comes is

to reference Smith v. Coldwell Banker Real Estate Services, Inc.,

a district court case out of Connecticut, which Randall claims

stands for the proposition that violations of the Act are

cumulative and each requirement of the Act is separate and

distinct. See 122 F. Supp. 2d 267 (D. Conn. 2000). However, we do

not see any such language in Smith. The only arguably comparable

point in that case is when the court expressed an unwillingness to

accept the home seller's argument that it had a "substantial

compliance" defense because it met some, though not all, of the

Act's requirements. See id. at 272-73. But we decline to

speculate as to whether this point is what Randall is attempting to

rely on.

Moreover, we do not disagree that the Act places multiple 

requirements on a seller as far as what actions must be taken

(e.g., provide a lead hazard information pamphlet and permit a tenday inspection period) and what disclosures must be made (e.g.,

disclose the presence of lead-based paint hazards and hand over any

evaluation reports). See 42 U.S.C. § 4852d(a)(1)(A)-(C). That

being said, Randall has not made a strong case for treating a

seller's non-conformance with each of the Act's requirements as

separate causes of action. He has not offered up any supporting

case law, endeavored to conduct any statutory construction

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analysis, or provided any analogous examples of courts parsing out

the requirements of other statutes in such a manner. As a result,

we decline Randall's invitation to consider the City's failure to

comply with the Act's various requirements as giving rise to

multiple causes of action. We must now determine when Randall's

cause of action (his single cause of action) accrued. 

iv. Accrual

While we are utilizing New Hampshire law for the

applicable statute of limitations, the date of accrual is a federal

law question. See Gorelik v. Costin, 605 F.3d 118, 121-22 (1st

Cir. 2010); Greenwood ex rel. Estate of Greenwood, 527 F.3d at 14. 

Though we have not had occasion to decide the accrual particulars

for a 42 U.S.C. § 4852d action, we have applied the following

parameters in the context of other statutes: (1) explaining that a

Federal Tort Claims Act "claim generally accrues at the time of

injury" unless, in certain situations, "the injury itself or its

cause is not readily apparent," Donahue v. United States, 634 F.3d

615, 623 (1st Cir. 2011); (2) finding that, in an action filed

under the Declaratory Judgment Act and the Public Utility

Regulatory Policies Act, "[f]ederal law incorporates 'the standard

rule that [accrual occurs] when the plaintiff has a complete and

present cause of action,'" Greenwood ex rel. Estate of Greenwood,

527 F.3d at 14 (quoting Wallace v. Kato, 549 U.S. 384, 388 (2007)

(alteration in original) (internal quotation marks omitted)); (3)

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holding that Section 1983 actions accrue "'when the plaintiff

knows, or has reason to know of the injury on which the action is

based,'" Gorelik, 605 F.3d at 122; and (4) stating that in certain

Employee Retirement Income Security Act suits "'it is the

[challenged employment] decision and the participant's discovery of

this decision that dictates accrual,'" Edes v. Verizon Commc'ns,

Inc., 417 F.3d 133, 139 (1st Cir. 2005)(alteration in original). 

Our take-away from these cases is that causes of action

typically accrue when the aggrieved party suffers his injury

(absent application of a discovery rule, which we will get into

later). At the time of injury, the potential plaintiff has a

present and complete cause of action and can sue. What this means

for Randall is that his cause of action accrued on July 22, 2003,

the closing date.

 A violation of the Act occurs when the seller fails to

make the necessary disclosures. See Mason ex rel. Heiser v.

Morrisette, 403 F.3d 28, 31 (1st Cir. 2005). This reading is

consistent with the purpose of the Act's disclosure requirements,

which is

to provide the purchaser . . . with notice that there

could be a lead-based paint hazard present in the subject

premises, and the opportunity to either decline to enter

into a contract regarding the premises or proceed forward

with the transaction in the face of the knowledge that a

lead-based paint hazard could be present.

Id. In keeping with this goal, the Act logically requires that the

seller take the necessary actions and make the requisite

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disclosures "before the purchaser . . . is obligated under any

contract to purchase . . . the housing." 42 U.S.C. § 4852d(a)(1)

(emphasis added). Therefore the City was required to comply with

the Act's requirements - provide the information pamphlet, allow

the inspection period, disclose the existence of lead-based paint

hazards, relinquish any evaluation reports - prior to July 22,

2003, the date on which closing occurred. Consequently, as of that

date the City was one-hundred percent non-compliant and Randall had

a complete and present cause of action. When he signed the closing

documents, without the City's having complied with the Act, he was

injured. Randall could have filed suit, and potentially obtained

relief, at that time. Our conclusion: Randall's cause of action

against the City accrued on July 22, 2003 unless he is saved by the

application of a discovery rule.

v. The Discovery Rule

As a general proposition, a discovery rule "allow[s] a

claim 'to accrue when the litigant first knows or with due

diligence should know facts that will form the basis for an

action." Merck & Co., Inc. v. Reynolds, 130 S.Ct. 1784, 1794

(2010) (citing 2 C. Corman, Limitation of Actions § 11.1.1, p. 134

(1991 & Supp. 1993)). To the extent that such a rule is applicable

to this case, it does not help Randall.4

 Randall's deposition

4

 A brief clarification on why we are being equivocal on this

point. The parties and the district court assumed the

applicability of New Hampshire's discovery rule. See N.H. Rev.

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testimony strongly suggests that he had actual knowledge that the

City had not returned the disclosure form prior to closing. Even

generously assuming this not to be the case, it is clear that at

the very least, in the exercise of due diligence, Randall should

have known. He had previously signed the blank disclosure form and

been told by his agent that the City would complete it. The City

never did. Nonetheless, Randall did not follow-up with his agent

to see why he had not received the signed form. Instead he went

ahead with the purchase. 

That Randall did not (and could not) specifically know

about the Alpha report at that time is of no weight in our

discovery-rule analysis. Turning over the report was just one in

a series of obligations imposed by the Act, and in fact,

identification of the report was one of the disclosures that the

City was required to make on the disclosure form. Because at the

time of closing Randall had discovered (or at a minimum should have

discovered) that the City had not completed the disclosure form or

made any of the compulsory disclosures, the statute of limitations

Stat. Ann. § 508:4 (providing that in the event the injury and its

causal relationship to the act or omission complained of were not

discovered and could not have reasonably been discovered, an action

shall be commenced within three years of the plaintiff's making the

discovery). However, as we noted, it is federal law that controls

the accrual issue. Though there is a dearth of law on when actions

accrue for purposes of 42 U.S.C. § 4852d, as a general matter,

courts apply forms of the "discovery rule" to all types of claims. 

See Merck & Co., Inc. v. Reynolds, 130 S.Ct. 1784, 1794 (2010). 

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clock started ticking. It is not necessary that Randall knew the

full extent of, or the particulars of, the City's wrongful

conduct.5

 See Epstein v. C.R. Bard, Inc., 460 F.3d 183, 187 (1st

Cir. 2006) (stating that in connection with the Massachusetts 

discovery rule, a "plaintiff is considered to be on 'inquiry

notice' when the first event occurs that would prompt a reasonable

person to inquire into a possible injury at the hands of the

defendant"); Feddersen v. Garvey, 427 F.3d 108, 113 (1st Cir. 2005)

(finding that in a legal malpractice action, the New Hampshire

"discovery rule is not intended to toll the statute of limitations

until the full extent of the plaintiff's injury has manifested

itself'"); Callahan v. United States, 426 F.3d 444, 451 (1st Cir.

2005) (explaining that in a Federal Tort Claims Act suit,

"'something less than definitive knowledge is required'" and

"[a]ccrual is triggered by 'the discovery of sufficient facts about

the injury and its cause'" to prompt an inquiry). 

Ultimately we cannot say for certain whether the Alpha

report would have come to light had Randall pressed for a completed

disclosure form. But this uncertainty does not change our

conclusion. Even applying the discovery rule, Randall's cause of

5

 Our conclusion might be different had the City actually

completed the disclosure form and on it affirmatively (and

inaccurately) indicated that there were no relevant reports. But

that is not the situation we have here.

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action still accrued when he closed on the property on July 22,

2003.

CONCLUSION

Because Randall filed this lawsuit six and one-half years

after his cause of action accrued, the suit is untimely under New

Hampshire's three-year limitations period. We affirm the district

court's grant of summary judgment in favor of the City.

-Concurring Opinion Follows-

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Howard, Circuit Judge, (Concurring). A person damaged by

a violation of the Residential Lead-Based Paint Hazard Reduction

Act may seek recovery against the violator. 42 U.S.C. §

4852d(b)(3). Among the Act's express requirements, implemented by

a regulation, is one that imposes on a seller the obligation to

hand over to the buyer "any lead hazard evaluation report available

to the seller." § 4852d(a)(1)(B). The seller is required to

provide this report before the buyer is obligated to purchase the

house. § 4852d(a)(1). I am not prepared to say that the statute

of limitations for a civil suit based on an alleged violation of

this strict consumer protection provision necessarily began to run

at the same time that it did for the cause of action based on the

other disclosure violations alleged in this case. 

Moreover, the seller's further arguments that the buyer

was on at least inquiry notice do not persuade me. I do not accept

the seller's argument that its failure to provide to the buyer a

timely and completed lead paint hazard disclosure form put the

buyer on inquiry notice that the seller had also failed to hand

over an existing lead paint report; in fact, all indications are

that even had the seller provided the form, it would not have

disclosed the existence of the report. Nor do I accept the

seller's argument that the buyer's ability and opportunity to test

for lead paint also put the buyer on inquiry notice that a report

existed.

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Despite these misgivings, I agree with the result in this

case, based upon an argument made by the seller in the district

court. Under the Act, sellers are liable to buyers only for

knowing violations. § 4852d(b)(3). To permit a finding of

liability on this record would be to convert the knowing violation

standard to one of mere negligence. Congress explicitly chose the

higher standard.

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