4444444444444444444444444444444444444444444444447 Fiberlink Communications Corporation v. John Patrick James Magarity

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
FIBERLINK COMMUNICATIONS
CORPORATION,
Plaintiff-Appellee, No. 02-1741
v.
JOHN PATRICK JAMES MAGARITY,
Defendant-Appellant.
4444444444444444444444444444444444444444444444448
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Dennis W. Dohnal, Magistrate Judge.
(CA-00-198-3)
Argued: April 1, 2003
Decided: July 31, 2003
Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.*
____________________________________________________________
Affirmed by unpublished per curiam opinion.
____________________________________________________________
COUNSEL
ARGUED: David Gant Shuford, LECLAIR RYAN, P.C., Richmond,
Virginia, for Appellant. Thomas S. Biemer, DILWORTH PAXSON,
L.L.P., Philadelphia, Pennsylvania, for Appellee. ON BRIEF:
____________________________________________________________
*Judge Luttig was originally assigned to the panel in this case but did
not hear the case. The decision is filed by quorum of the panel pursuant
to 28 U.S.C. § 46(d).

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Charles M. Sims, LECLAIR RYAN, P.C., Richmond, Virginia, for
Appellant. Joshua D. Groff, DILWORTH PAXSON, L.L.P., Philadel-
phia, Pennsylvania, for Appellee.
____________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
____________________________________________________________
OPINION
PER CURIAM:
John Patrick James Magarity appeals the magistrate judge's ruling,
on remand following an earlier appeal in this case, in favor of Fiber-
link Communications Corporation. The magistrate judge held that any
claim by Magarity based on a breach of his employment contract with
Fiberlink was barred by the Virginia statute of limitations. Magarity
argues, contrary to his argument on his previous appeal, that no stat-
ute of limitations applies to his claim. Because Magarity could have
raised this argument on his previous appeal, it is inappropriate to con-
sider it on this second appeal. Accordingly, we affirm the judgment
of the magistrate judge.
A detailed recitation of the facts underlying this case is contained
in our previous opinion, Fiberlink Communications Corp. v.
Magarity, No. 01-1425, 24 Fed. Appx. 178, 2001 WL 1658914 (4th
Cir. Dec. 27, 2001) (unpublished per curiam opinion) (Fiberlink I).
Relevant to this appeal, on March 28, 2000, Fiberlink filed a com-
plaint against Magarity in the United States District Court for the
Eastern District of Virginia. Magarity filed a counterclaim alleging
that Fiberlink breached its employment contract with him by failing
to deliver common stock to him as a "signing bonus." After a bench
trial, the magistrate judge determined that Magarity's claim accrued
in 1997, and applying the California two-year statute of limitations,
dismissed the claim as time-barred.1 Magarity appealed to this court.
____________________________________________________________
1 Pursuant to 28 U.S.C.A. § 636(c) (West 1993 & Supp. 2003), the par-
ties consented to have the case tried by a magistrate judge.
2

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On that appeal, Magarity did not challenge the necessary predicate of
the magistrate judge's ruling — that Magarity's claim was a claim at
law, and thus, subject to a statute of limitations. Instead, he first
argued that only the Virginia statute of limitations applied because
"his claim is governed by Virginia law, not the law of another state."2
Fiberlink I, 24 Fed. Appx. at 181. Based on the magistrate judge's
determination that the claim accrued in 1997, Magarity argued that
his claim was therefore timely under the Virginia three-year statute of
limitations. Magarity also argued that even if the Virginia borrowing
statute, Va. Code Ann. § 8.01-247, applied, "the record did not sup-
port the selection of California as the appropriate state." Fiberlink I,
24 Fed. Appx. at 181.
Section 8.01-247 applies if the contract is "governed by the law of
another state." Va. Code Ann. § 8.01-247 (Michie 2000). We held
that under Virginia law the contract between Magarity and Fiberlink
was "governed by the law of the state in which the contract was
formed" but that it was impossible to determine where the contract
was formed based on the existing record. Fiberlink I, 24 Fed. Appx.
at 182. We also held that Magarity's claim accrued in 1994, not in
1997. Id. at 183. Accordingly, we remanded for the magistrate judge
to "(a) attempt to determine which foreign statute of limitations
applies under § 8.01-247 of the Virginia Code and whether that stat-
ute bars Magarity's claim or (b) consider whether Magarity's claim
is barred under the Virginia statute of limitations." Id.
____________________________________________________________
2 As we noted in Fiberlink I ,
In some cases, Virginia applies a foreign limitations period in
addition to its own, pursuant to a "borrowing statute." This stat-
ute provides, "No action shall be maintained on any contract
which is governed by the law of another state or country if the
right of action thereon is barred either by the laws of such state
or country or of this Commonwealth." Va. Code Ann. § 8.01-247
(Michie 2000). Thus, if the contract between Magarity and
Fiberlink is "governed by the law of another state," then Magari-
ty's claim is subject to the statute of limitations imposed by that
state (as well as [the Virginia three-year statute of limitations]).
Fiberlink I, 24 Fed. Appx. at 181.
3

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On remand, Magarity argued that the running of the statute of limi-
tations was tolled based on the principles of estoppel and equitable
tolling. In a supplemental filing, Magarity, for the first time, raised
the argument that he attempts to raise here — that his claim is a claim
in equity to which no statute of limitations applies.
In accordance with our mandate, the magistrate judge determined,
based on additional stipulations by the parties, that the Virginia three-
year statute of limitations applied because § 8.01-247 allows the bor-
rowing of another state's statute of limitations only when that statute
of limitations is shorter than that of Virginia. Since Pennsylvania, the
state in which it appeared the contract at issue was formed, has a four-
year statute of limitations, the magistrate judge held that the shorter
Virginia statute of limitations applied. Thus, the magistrate judge held
that "Magarity's claim for the issuance of Fiberlink's common stock
as part of his signing bonus is barred by the Virginia statute of limita-
tions, given the Appeals Court's holding that any related cause of
action accrued at the time Magarity began working for Fiberlink in
April 1994, and this Court's present finding that only [two years and
five months] can be excluded from the total period based on princi-
ples of equitable tolling and estoppel." (J.A. at 160.) The magistrate
judge ruled that Magarity was precluded from raising his new argu-
ment that no statute of limitations applied, but that even if Magarity
could raise this new argument, his claim would still be barred by the
equitable doctrine of unclean hands.
Magarity argues on appeal that the magistrate judge erred in reject-
ing his new argument that his claim sounds in equity, and thus, that
the judge erred in applying the Virginia statute of limitations. We
review de novo the magistrate judge's legal conclusion that Magarity
was precluded from raising his new argument that his claim sounds
in equity. United States v. United Med. and Surgical Supply Corp.,
989 F.2d 1390, 1398 (4th Cir. 1993).
"It is elementary that where an argument could have been raised on
an initial appeal, it is inappropriate to consider that argument on a
second appeal following remand. . . . The most rudimentary proce-
dural efficiency demands that litigants present all available arguments
to an appellate court on the first appeal." Omni Outdoor Adver., Inc.
4

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v. Columbia Outdoor Adver., Inc., 974 F.2d 502, 505 (4th Cir. 1992)
(internal quotation marks and citation omitted).
If parties who lost on appeal were allowed to return to
appellate courts to advance different, previously available
theories, cases could languish for years before final resolu-
tion and already crowded court dockets would swell even
more. In addition, it is not fair for an adversary to have to
defend the same lawsuit on appeal over and over. "It would
be absurd that a party who has chosen not to argue a point
on a first appeal should stand better as regards the law of the
case than one who had argued and lost."
Id. (quoting Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981)).
Magarity does not argue that his new argument was unavailable to
him on his initial appeal. Thus, it would be inappropriate for us to
consider his argument on this appeal. Accordingly, we affirm the
magistrate judge's ruling that Magarity's claim is time-barred.
AFFIRMED
5

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