919 F2d 145 Miller v. Best Lock Corporation

919 F.2d 145

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Joseph E. MILLER, Jr., Plaintiff-Appellant,
BEST LOCK CORPORATION and Best Universal Lock Company,

No. 89-35790.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 1, 1990.*
Decided Nov. 23, 1990.


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Plaintiff, Joseph E. Miller, Jr., appeals from the district court's grant of summary judgment in favor of defendants, Best Lock Corp. and Best Universal Lock Co. (collectively, "Best Lock"), denial of his motion for leave to amend, grant of defendants' motion to strike his supplemental brief and affidavits, and denial of his motion for reconsideration. We affirm.



Miller is the assignee of stockholder rights in Best Lock. The stock originally belonged to his grandmother, Lillian B. Richardson. Richardson received the stock in Best Lock by court order after her husband, Guy Stansell, died on January 17, 1937. Although she received the untransferred certificates, Richardson never received dividends, annual reports or proxy statements.


As early as the 1940s, Richardson made inquiries to Best Lock about transfer of the stock to her. Best Lock refused to transfer the stock. In 1957, Richardson's daughter, Kathleen Miller, made an inquiry, but Best Lock informed her that the stock was in the estate of Richardson's husband. Eventually, all of Richardson's interest in the stock was conveyed to Kathleen Miller, who then conveyed the stock to Miller. Miller was also appointed attorney in fact for Richardson.


Sometime between 1981 and 1983, Best Lock issued new shares to Frank and Edwin Stansell, who were Guy Stansell's children by a prior marriage. In February 1983, Miller made an inquiry to Best Lock. On July 26, 1984, Miller made a demand for the stock. Finally, on July 24, 1986, he filed this action. He asserted a number of claims, of which the relevant ones for this appeal were for violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Secs. 1962(b), (c), and (d), and conversion under Washington law. The district court had jurisdiction under 18 U.S.C. Sec. 1964(c) and 28 U.S.C. Sec. 1331.


The court set a deadline for joining parties of March 5, 1989, a discovery cut-off date of June 2, 1989, and a motions filing date of July 6, 1989. Best Lock filed a motion for summary judgment. On June 9, 1989, Miller filed a motion for leave to amend his complaint to add the Stansell children as defendants. On the same date, which was after the due date for opposition, he also filed a supplemental brief and affidavits in opposition to the summary judgment motion. Best Lock moved to strike those tardily filed papers.


The district court granted the motion for summary judgment. The court found that all of the claims were barred by the applicable statutes of limitation. The court also granted the motion to strike and denied leave to amend. Miller then filed a motion for reconsideration, which the court denied. Miller filed a timely notice of appeal. Fed.R.App.P. 4(a)(4). We have jurisdiction under 28 U.S.C. Sec. 1291.


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We review the grant of summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). We review the denial of a motion to amend for abuse of discretion. McGlinchy v. Shell Chemical Co., 845 F.2d 802, 809 (9th Cir.1988). The grant of a motion to strike is reviewed for abuse of discretion, Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1519 (9th Cir.1983), cert. denied, 465 U.S. 1081, 104 S.Ct. 1446, 79 L.Ed.2d 765 (1984), as is the denial of a motion for reconsideration. Walker v. Bank of America Nat'l Trust and Sav. Ass'n, 268 F.2d 16, 25 (9th Cir.), cert. denied, 361 U.S. 903, 80 S.Ct. 211, 4 L.Ed.2d 158 (1959).



1. Grant of Summary Judgment and Denial of Motion for Reconsideration.


Miller appeals from the court's grant of summary judgment on the RICO and conversion claims. The statute of limitations on RICO claims is four years. Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987). The period accrues when the plaintiff is aware of or has reason to be aware of the racketeering injury. Compton v. Ide, 732 F.2d 1429, 1433 (9th Cir.1984). See Beneficial Standard Life Ins. Co. v. Madariaga, 851 F.2d 271, 275 (9th Cir.1988).


The period commenced before any of Miller's inquiries to Best Lock or the transfer of the stock to the Stansell children. As early as the 1940s, Richardson and her daughter had made numerous inquiries, all of which were rebuffed by Best Lock. Best Lock made it quite clear that it did not recognize her rights and would not transfer the stock to her. Those responses gave Richardson reason to be aware of the alleged injury. Therefore, the RICO claims are barred.1


The limitations period on the conversion claim is three years. Wash.Rev.Code Sec. 4.16.080(2) (Supp.1990). The limitations period runs from a timely demand, but the demand must be made within a reasonable time. Washington Sec. Co. v. State of Washington, 9 Wash.2d 197, 114 P.2d 965, 971 (1941). Even if Miller's demand were considered to be the triggering event, it was delayed by at least forty years. If earlier contacts are treated as demands, the statute ran long ago. The district court's determination that the demand was not made within a reasonable time was not error.2


Thus, the district court properly dismissed those claims. Because the district court was correct in its dismissal of those claims on limitations grounds, it also did not abuse its discretion when it denied the motion for reconsideration.


2. Motion for Leave to Amend.


A motion for leave to amend may be denied when there is undue delay, prejudice to the opposing party, or futility of amendment. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). The district court denied the motion for leave to amend on those grounds. Denial for those reasons was not an abuse of discretion. Miller was aware of the facts supporting his allegations against the Stansell children at the time the complaint was filed, but delayed until after the deadline for joining parties before seeking amendment. Amendment would prejudice Best Lock, because the motion for leave to amend was filed one month before the discovery cut-off date. Moreover, the amendment would have been futile, because the limitations ground bars the claims against the Stansell defendants as it does the claims against Best Lock. Finally, plaintiff did not show good cause for his late-filed motion. See Fed.R.Civ.P. 16(b)(1).


3. Motion to Strike.


The district court did not abuse its discretion when it struck the untimely brief and affidavits. Those documents were filed after the due date for opposition to the summary judgment motion. It was proper to strike them. Wood, 705 F.2d at 1519.




The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a)


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


Of course, we recognize that the claimed injury actually occurred long before 1970, when the RICO statute was adopted. Organized Crime Control Act of 1970, tit. IX, Pub.L. No. 91-452, 84 Stat. 922, 941-48 (1970)


This also answers Miller's claim that the transfer of the stock to the Stansells constituted a new RICO injury which recommenced the statute of limitations. By that time--indeed, before RICO even came into existence--the right to recover the stock had been lost, so no new injury was inflicted. See State Farm Mutual Automobile Ins. Co. v. Ammann, 828 F.2d 4, 5 (9th Cir.1987) (as to each RICO injury, the statute of limitations starts to run when the plaintiff "knows or has to reason to know of the injury"). See also Pace Indus., Inc. v. Three Phoenix Co., 813 F.2d 234, 238 (9th Cir.1987)