United States Court of Appeals

For the First Circuit

No. 03-1493

CARMEN L. RODRÍGUEZ-GARCÍA,

Plaintiff, Appellant,

v.

MUNICIPALITY OF CAGUAS; HON. WILLIAM MIRANDA-MARÍN, as Mayor of

Caguas and in his personal capacity; WILFREDO PUIG, as Vice Mayor

of Caguas and in his personal capacity,

Defendants, Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

 Torruella, Lynch, and Howard,

Circuit Judges.

Godwin Aldarondo-Girald, with whom Aldarondo Girald Law Office

was on brief, for appellant.

Kenneth Colon for appellees William Miranda-Marín and Wilfredo

Puig.

Grisselle Gonzalez-Negron, with whom Faccio & Pabon-Roca and

Luis E. Pabon-Roca were on brief, for appellee Municipality of

Caguas.

January 7, 2004
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LYNCH, Circuit Judge. The American common law rule is

that generally the filing of a prior judicial action does not toll

the statute of limitations. Puerto Rico has chosen a different

rule, permitting such tolling. That rule gives rise to this

appeal.

The federal civil rights claims brought by Carmen L.

Rodríguez-García, a terminated public employee, were not timely

unless they were saved by tolling based on an earlier complaint

that she filed in the courts of Puerto Rico and later amended. Her

claims are tolled only if either her original or her amended

complaint in the Puerto Rico courts was timely and stated causes of

action identical to those in her later federal complaint. In our

federal system of justice built on both federal and state or

Commonwealth courts, this case raises interesting questions about

the meaning of the "identicality" requirement. Given the

generalized pleading rules and the latitude of Fed. R. Civ. P.

12(b)(6), it is not always easy to tell whether identical claims

are stated in different complaints. Here, the district court

thought that the claims were not identical and so dismissed the

complaint. Mindful of generous pleading rules and Puerto Rico's

liberal approach to relation-back rules, we reach the opposite

conclusion and reinstate the case. 
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I.

On October 25, 2000, Rodríguez-García brought suit in

Puerto Rico Superior Court in Caguas against the Municipality of

Caguas, through its mayor William Miranda-Marín; Luisa Flores, in

her capacity as Director of the Department of Beautification,

Cleaning, and Urbanism and in her personal capacity; and XYZ

Insurance Company. The complaint alleged the following facts.

Rodríguez-García was an executive secretary at the

Department of Beautification, Cleaning, and Urbanism of the

Municipality of Caguas in Puerto Rico. She was assigned to Flores,

who was the Director of the Department. Flores came under

investigation by the Office of Government Ethics, and RodríguezGarcía testified in that investigation. During January and

February of 2000, Rodríguez-García applied to the State Insurance

Fund for medical treatment for an emotional condition caused by

Flores's "uncouth and rude" behavior toward her. When RodríguezGarcía returned to work on February 22, 2000, Wilfredo Puig, vicemayor of Caguas, informed her that she had been transferred and

ordered her to report to the Department of Education. He told her

that Flores was under investigation by the Office of Government

Ethics and that Rodríguez-García was being transferred because

Flores did not feel comfortable working with her.

On February 24, 2000, Rodríguez-García reported to the

Department of Education but was told that there was no physical
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space for her there. She was sent to the Human Resources Office,

where director Armando Meléndez told her to go home until a post

was found for her. Several days later, Meléndez called RodríguezGarcía and instructed her to report to the Human Resources Office

and then go to work at the Office of Federal Funds and Affairs. On

February 28, when Rodríguez-García went to the Human Resources

Office, Meléndez's secretary handed her a letter addressed to the

director of the Office of Federal Funds and Affairs. The letter

described Rodríguez-García's placement in that office as temporary

and referred to her transfer as a move that she had requested.

Rodríguez-García informed Meléndez and Puig that she had not

requested this transfer. The next day, Rodríguez-García was

nonetheless transferred to the Office of Federal Funds and Affairs.

No duties were assigned to her there.

On March 8, 2000, Rodríguez-García's attorney sent a

letter to Mayor Miranda-Marín requesting that he reinstate

Rodríguez-García to her previous post. In a letter dated March 27,

2000, Eileen Herrero, Director of Human Resources for the

Municipality of Caguas, replied that if Rodríguez-García wished to

be reassigned to her original post, she would be. But then Leslie

Rodríguez, Acting Director of the Human Resources Office, met with

Flores, who refused to reinstate Rodríguez-García, and RodríguezGarcía was not reinstated.
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Based on these factual allegations, the complaint

asserted that Rodríguez-García had been transferred in retaliation

for her statement before the Office of Government Ethics, and that

such a retaliatory transfer violated 29 P.R. Laws Ann. § 194a,

which prohibits employers from discriminating against employees for

providing testimony, statements, or information before a

legislative, administrative, or judicial forum in Puerto Rico. The

complaint also alleged that "plaintiff's transfer was illegal,

arbitrary, whimsical, violates plaintiff's constitutional rights,

such as the due process of law, procedural as well as substantive,

and violates her record to ownership and to her dignity as a

person" (emphasis added). The complaint did not specify whether

these constitutional claims were based on the Puerto Rico

Constitution or the United States Constitution. Nor did the

complaint expressly refer to political discrimination or the right

to freedom of speech or affiliation. Rodríguez-García sought

damages and injunctive relief reinstating her.

On August 31, 2001, Rodríguez-García amended her

complaint. The amended complaint dropped Flores, who had passed

away, as a defendant. It also included several new allegations.

The amended complaint alleged that the Municipality of Caguas and

Mayor Miranda-Marín refused to reinstate Rodríguez-García to her

position because she had offered information harmful to the Popular

Democratic Party (PDP). It also alleged that Flores remarked that
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she had no confidence in Rodríguez-García because Rodríguez-García

was not a member of the PDP and wanted to harm the party. The

amended complaint further alleged that Rodríguez-García was

"charged of not being a PDP'er ('belonging to the Popular

Democratic Party') and this constitutes a[n act of] political

discrimination" (emphasis added).

On November 7, 2001, Rodríguez-García filed a complaint

in federal district court in Puerto Rico against the Municipality

of Caguas and against Mayor Miranda-Marín and Vice-Mayor Puig in

their personal and official capacities. This federal complaint

alleged that Rodríguez-García had been discriminated against

"because of her political beliefs . . . and in reprisal for

providing information to the Ethics Office regarding an

investigation of the Municipality['s] political affairs." The

complaint sought relief under the First, Fifth, and Fourteenth

Amendments of the United States Constitution; 42 U.S.C. §§ 1981,

1983, and 1985; Article II §§ 1, 6, and 7 of the Puerto Rico

Constitution; the general tort laws of Puerto Rico, 31 P.R. Laws

Ann. §§ 5141 and 5142; and the public policy exception to 29 P.R.

Laws Ann. § 185a, see Negrón v. Caleb Brett USA, Inc., 212 F.3d

666, 667 (1st Cir. 2000). The complaint sought injunctive relief,

damages, attorneys' fees and costs, and a declaratory judgment. In

addition to repeating the facts alleged in the amended state

complaint, the federal complaint added allegations that the
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defendants acted intentionally or with deliberate indifference and

that Mayor Miranda-Marín and Vice-Mayor Puig approved or ratified

the discrimination against Rodríguez-García under color of law.

Furthermore, while the original state complaint alleged violations

of Rodríguez-García's constitutional rights, such as due process,

and her right to record of ownership, the federal complaint

replaced this language with allegations that the defendants

violated Rodríguez-García's right to "freedom of speech and

affiliation."

Two days after filing the federal complaint, RodríguezGarcía filed a voluntary dismissal without prejudice of her claims

in the Puerto Rico courts. Most likely, that was because jury

trials in civil cases are available in federal court but not in the

Commonwealth courts. See Grajales-Romero v. American Airlines,

Inc., 194 F.3d 288, 293 (1st Cir. 1999). On October 4, 2002, the

defendants moved for summary judgment in the federal case, arguing

that the federal complaint was time-barred because it was filed

after the applicable statute of limitations had expired. They also

argued in their motion for summary judgment that Rodríguez-García

had failed to establish a cognizable claim for political

discrimination, that the individual defendants were entitled to

qualified immunity, and that §§ 1981 and 1985 do not apply to

political discrimination.
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On March 12, 2003, the district court granted the

defendants' motion for summary judgment based on the timeliness

issue. The court determined that the plaintiff's federal claims

borrow Puerto Rico's one-year statute of limitations for tort

claims and that Rodríguez-García's November 7, 2001 complaint was

untimely because it was filed more than one year after her February

29, 2000 transfer. The court held that the limitations period was

not tolled by Rodríguez-García's filing of her state complaint on

October 25, 2000. The court noted that the federal claims borrow

Puerto Rico law as to tolling, that 31 P.R. Laws Ann. § 5303

provides that the limitations period is "interrupted by [the]

institution [of actions] before the courts," and that RodríguezGarcía had filed a timely state complaint. Quoting Fernandez v.

Chardon, 681 F.2d 42, 47 (1st Cir. 1982), the court determined that

§ 5303 tolls the statute of limitations for claims only when

"identical causes of action" have been filed. The claims in

Rodríguez-García's state complaint, the court found, were not

identical to her federal claims. The court determined that her

state complaint, even after it was amended, never alleged federal

constitutional violations. The court noted that the state

complaint did not refer to a right to freedom of speech or of

political affiliation. Although the Puerto Rico complaint did

allege a violation of due process without indicating whether this

right was based on the federal or state constitution, the court
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found that this was not an assertion of a federal constitutional

claim. Having concluded that the federal claims were untimely, the

court then dismissed without prejudice the remaining claims arising

under Puerto Rico law.

Rodríguez-García appeals from the court's grant of

summary judgment, arguing that her federal claims were timely and

that, in the alternative, the claims arising under Puerto Rico law

were still within the statute of limitations and should not have

been dismissed.

II.

When summary judgment has been granted on the grounds

that a complaint is time-barred, our review is de novo. See

Garcia-Guzman v. Villoldo, 273 F.3d 1, 3 (1st Cir. 2001). We hold

that the district court erred in dismissing Rodríguez-García's

federal claims as untimely.

Unless the filing of the state complaints tolled the

statute of limitations, the federal claims were not timely.

Sections 1981, 1983, and 1985 borrow the forum state's statute of

limitations for personal injury claims. See Goodman v. Lukens

Steel Co., 482 U.S. 656, 660-62 (1987) (§ 1981); Wilson v. Garcia,

471 U.S. 261, 277-280 (1985) (§ 1983); Chappell v. Rich, 340 F.3d

1279, 1283 (11th Cir. 2003) (§ 1985).

Here, the parties agree that the appropriate statute of

limitations is Puerto Rico's one-year period governing tort
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actions, 31 P.R. Laws Ann. § 5298(2). See Guzman-Rivera v.

Rivera-Cruz, 29 F.3d 3, 4-5 (1st Cir. 1994); Altair Corp. v.

Pesquera de Busquets, 769 F.2d 30, 31 (1st Cir. 1985). Federal law

determines the date on which the claim accrued. Rivera-Muriente v.

Agosto-Alicea, 959 F.2d 349, 353 (1st Cir. 1992). Under federal

law, the limitations period begins to run when the plaintiff "knows

or has reason to know of the injury which is the basis for his

claim." Rodriguez Narvaez v. Nazario, 895 F.2d 38, 41 n.5 (1st

Cir. 1990). The parties do not appear to dispute that the claim

accrued on February 29, 2000, when Rodríguez-García was transferred

to the Office of Federal Funds and Affairs. Absent any tolling,

Rodríguez-García had to file her federal complaint on or before

March 1, 2001.

The issue, then, is whether Rodríguez-García's filing of

her state complaint on October 25, 2000, and her later amendment of

that complaint on August 31, 2001, tolled the statute of

limitations. Where suit is brought in Puerto Rico, federal law

under §§ 1981, 1983, and 1985 borrows Puerto Rico law on tolling,

provided that it is consistent with underlying federal policy. 

See Fernandez, 681 F.2d at 49-50 (applying this rule to § 1983

claims). Under 31 P.R. Laws Ann. § 5303, "[p]rescription of

actions is interrupted by their institution before the courts, by

extrajudicial claim of the creditor, and by any act of

acknowledgment of the debt by the debtor." When a complaint is
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filed in the Commonwealth courts, the statute of limitations begins

to run anew from the date on which that action "comes to a definite

end." Silva-Wiscovich v. Weber Dental Mfg. Co., 835 F.2d 409, 410

(1st Cir. 1987) (quoting Siva-Wiscovich v. Weber Dental Mfg. Co.,

19 P.R. Offic. Trans. 592, 604, 119 P.R. Dec. 550 (1987)). Here,

that date would be November 9, 2001, when Rodríguez-García

voluntarily dismissed her state complaint. See id. (voluntary

dismissal without prejudice brings action to definite end).

Rodríguez-García's Puerto Rico complaint must assert

causes of action "identical" to her federal claims in order to toll

the statute of limitations as to those federal claims under § 5303.

Rodriguez Narvaez, 895 F.2d at 43 (citing Fernandez, 681 F.2d at

49, and Ramirez de Arellano v. Alvarez de Choudens, 575 F.2d 315,

319-20 (1st Cir. 1978)). "[T]he filing of one action does not toll

the statute of limitations for all claims arising out of the same

facts." Fernandez, 681 F.2d at 49. The Supreme Court of Puerto

Rico has approved this identicality requirement. See Cintron v.

Estado Libre Asociado de P.R., 27 P.R. Offic. Trans. 582, 127 P.R.

Dec. 582 (1990) (holding that a timely filed extrajudicial claim

did not toll the statute of limitations for a suit in the Puerto

Rico courts because it did not "pursue identical claims"). The

identicality requirement prevents plaintiffs from circumventing the

notice function of the statutes of limitations by asserting

different claims in belated federal court complaints. Cf.
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Rodriguez Narvaez, 895 F.2d at 43 (statutes of limitations exist to

prevent defendants from being surprised by long-dormant causes of

action). 

In determining whether causes of action identical to

Rodríguez-García's federal claims were brought in her state

complaint, the first question is whether the basis for comparison

is her original or her amended state complaint. The defendants

argue that Rodríguez-García cannot rely on amendments to her state

complaint because those amendments were filed on August 31, 2001,

after the statute of limitations had already expired. Puerto Rico

law, however, is to the contrary. Rule 13.3 of the Puerto Rico

Rules of Civil Procedure provides that "[w]henever the claim or

defense asserted in the amended pleading arose out of the conduct,

transaction or occurrence set forth in the original pleading, the

amendments shall relate back to the date of the original pleading."

32 P.R. Laws Ann. App. III R. 13.3. Both Rodríguez-García's

amendments and her original complaint clearly arose out of the same

transaction: her involuntary transfer because of her testimony in

the Ethics Office investigation of Flores. Under Rule 13.3, her

amendments relate back to the October 25, 2000 date of the original

complaint and are thus timely. As a result, both the amended

complaint and the original complaint are relevant bases for

comparison.
1 The defendants argue that Rodríguez-García failed to

argue to the district court that her claims were identical and has

thus forfeited the argument. We disagree. In Rodríguez-García's

opposition to the defendants' motion for summary judgment, she

stated, "Defendants claim that the suit in state court was general

[and] did not specify under what laws it was filed. It is clear

however that [the plaintiff] claimed retaliation, constitutional

rights, and political discrimination." Her argument is preserved.

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The next issue is whether Rodríguez-García's original and

amended state complaints contain causes of action identical to her

federal claims.1 Although the question is close, we conclude that

the amended complaint is sufficient to meet the identicality

requirement. We hold that in order to be identical under § 5303,

claims must satisfy several requirements. They must seek the same

form of relief. Ramirez de Arellano, 575 F.2d at 320; cf.

Rodriguez Narvaez, 895 F.2d at 46 (extrajudicial claims, which also

trigger tolling under § 5303, did not toll the statute of

limitations when such claims sought different relief than the

federal complaint did); Fernandez, 681 F.2d at 53 (same); Hernandez

del Valle v. Santa Aponte, 575 F.2d 321, 324 (1st Cir. 1978)

(same). The causes of action asserted must be based on the same

substantive claims. And, provided that other Puerto Rico tolling

statutes do not rescue the claims on other grounds, they must be

asserted against the same defendants in the same capacities; new

defendants should not be added.

Rodríguez-García's claims satisfy all of these

requirements, with a few wrinkles that we describe in more depth
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below. She sought the same form of relief in both complaints:

injunctive relief and money damages. Although the amount of

damages differs in the two complaints, the allegation of damages in

her state complaint gave the defendants the requisite "fair notice

that [they] might be called upon to defend a damages suit, with

different issues not applicable to a suit for injunctive relief."

Hernandez del Valle, 575 F.2d at 324.

The harder question is whether Rodríguez-García's federal

and state complaints assert the same substantive claims, despite

differences in wording. We conclude that Rodríguez-García's

federal claims and the claims in her state complaint did rely on

the same substantive legal ground: that she was transferred because

she was not a member of the PDP and in retaliation for her

testimony in the Ethics Office investigation of Flores and that

this constituted "political discrimination" in violation of her

"constitutional rights." There are three significant differences

in the wording of the legal claims in her state and federal

complaints. But, as we discuss below, none of those three

differences indicates a change in Rodríguez-García's substantive

claim.

First, Rodríguez-García's state complaint, unlike her

federal complaint, did not expressly claim a violation of her

federal constitutional right to "freedom of speech and

affiliation." But a freedom of speech and affiliation claim was
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certainly implied in the state complaint by the allegations of

"political discrimination" in violation of her "constitutional

rights." The state complaint did not specify whether this claim

was based on the Puerto Rico or federal constitution, and claims

based on political discrimination may be brought under both

constitutions. See P.R. Const. art II, § 1 ("No discrimination

shall be made on account of . . . political or religious ideas.");

Mullin v. Town of Fairhaven, 284 F.3d 31, 37-38 (1st Cir. 2002)

(discrimination against public officers based on their speech can

violate the First Amendment of the United States Constitution). In

some situations, a plaintiff's failure to specify the constitution

upon which a claim is based could raise concerns about fair notice.

But in this instance, the substantive protections for freedom of

speech and association under the Puerto Rico Constitution are at

least as broad as the protections under the federal constitution.

See Empresas Puertorriqueñas de Desarrollo, Inc. v. Hermandad

Independiente de Empleados Telefónicos, 2000 PRSC 71 (2000).

Regardless whether the claim was based on the Commonwealth or the

United States Constitution, the defendants were on notice that

their actions would be held, at a minimum, to the federal

constitutional standard.

Second, Rodríguez-García's state complaint did not

expressly refer to §§ 1981, 1983, and 1985. But that does not

affect the substance of the claims alleged. The defendants were on
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notice of the federal constitutional violation forming the

substantive basis of those claims. See Baker v. McCollan, 443 U.S.

137, 144 n.3 (1979) ("[Section 1983] is not itself a source of

substantive rights, but a method for vindicating federal rights

elsewhere conferred by . . . the United States Constitution and

federal statutes."). In determining whether plaintiffs have

asserted identical legal claims, we look to the substantive rights

asserted, not the procedural vehicles involved. This has been the

Puerto Rico Supreme Court's approach in cases involving

extrajudicial claims. Under § 5303, "[p]rescription of actions is

interrupted by their institution before the courts, [or] by

extrajudicial claims." For an extrajudicial claim to trigger

tolling, just as for a judicial claim to do so, the causes of

action must be identical. Benitez-Pons v. Puerto Rico, 136 F.3d

54, 59 (1st Cir. 1998). In Matos Molero v. Roche Products, Inc.,

132 P.R. Dec. 29 (1993), the Puerto Rico Supreme Court held that

the filing of an administrative complaint before the Equal

Employment Opportunity Commission alleging sex discrimination in

violation of Title VII tolled the statute of limitations for an

equivalent cause of action under Puerto Rico law. The causes of

action in Matos Molero were identical because they asserted the

same substantive claim, albeit via different procedural vehicles.

See Leon-Nogueras v. Univ. of P.R., 964 F. Supp. 585, 589 (D.P.R.

1997) (noting that Matos Molero is "perfectly consistent with the
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requirement that the substantive claims raised in the extrajudicial

claim must be identical to the substantive claims raised in the

subsequent judicial complaint"). This approach makes sense in the

context of both judicial and extrajudicial claims. The substantive

claim, and not the procedural vehicle, is what matters to

defendants in the initial stages of preparing for litigation and

discovery. And, although § 1983 actions may be brought in state

courts, not all federal procedural vehicles may be used in state

courts. It would be perverse and a source of disharmony in the

federal system to make a state tolling statute turn on the

availability of federal procedural vehicles.

Third, Rodríguez-García's federal complaint added

allegations that the defendants acted intentionally or with

deliberate indifference in discriminating against her and that the

defendants approved or ratified Rodríguez-García's transfer. But

these allegations simply present, in a different form, allegations

already made in her state complaint. To demonstrate political

discrimination under the First Amendment, plaintiffs must show that

"the protected expression was a substantial or motivating factor in

the decision to remove them from their posts." Mullin, 284 F.3d at

38. Thus, by alleging political discrimination in her state

complaint, Rodríguez-García had already alleged, by implication,

that the defendants made a decision to transfer her and that the

decision was an act of intentional discrimination based on her
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political beliefs. In sum, Rodríguez-García's causes of action in

her state and federal complaints were based on the same substantive

claim and sought the same forms of relief.

As to the requirement of identicality of parties,

Rodríguez-García's claims in her federal complaint were not

asserted against exactly the same defendants in the same capacities

as in her state complaint. Her federal complaint added claims

against a new defendant, Vice-Mayor Puig, and against Mayor

Miranda-Marín in his personal, as opposed to official, capacity.

Ordinarily, § 5303 would not toll the statute of limitations as to

these additional claims. Defendants not sued in the original

complaint cannot be expected to be on notice of plaintiffs' claims.

And defendants sued only in their official capacities in the

original complaint cannot be expected to be on notice of the very

different issues raised by claims against them in their personal

capacities. But in this instance, the defendants have waived any

objection to the statute of limitations on this basis. Even

assuming that the defendants' brief reference to the issue in their

motion for summary judgment was sufficient to preserve the argument

below, the defendants failed to mention it at all in their brief on

appeal. The issue is waived. Cashmere & Camel Hair Mfrs. Inst. v.

Saks Fifth Ave., 284 F.3d 302, 309 (1st Cir. 2002).

In finding that Rodríguez-García's federal claims are

timely, we defer to certain choices that Puerto Rico has made.
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Although Puerto Rico construes its tolling rules strictly, see

Rodriguez Narvaez, 895 F.2d at 43, it allows plaintiffs to meet the

statute of limitations as long as their complaints are detailed

enough to put defendants on notice of the general nature of their

claims. "[P]leadings have only one mission: to show in a general

way which are the claims and defenses of the parties." Pressure

Vessels P.R. v. Empire Gas P.R., 137 P.R. Dec. 497 (1994) (emphasis

added). This liberal approach is also evident in Puerto Rico's

relation-back rule for amended complaints. 32 P.R. Laws Ann. App.

III, R. 13.3. Our result reflects the concern that a different

outcome here on the identicality requirement would contravene local

policy choices on an issue on which those choices are to be

honored.

III.

The district court's holding that the plaintiff's federal

claims are untimely is reversed. We vacate the grant of summary

judgment and, noting that the district court has not yet ruled on

the defendants' remaining arguments in favor of summary judgment,

remand for further proceedings consistent with this opinion. Costs

are awarded to Rodríguez-García. So ordered.