Ralph J. Cimon, Iii v. Christopher Gaffney; Guardian Life Insurance Company of America

United States Court of Appeals
For the First Circuit
No. 04-1631
RALPH J. CIMON, III,
Plaintiff, Appellant,
v.
CHRISTOPHER GAFFNEY;
GUARDIAN LIFE INSURANCE COMPANY OF AMERICA,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
C. Donald Briggs, III, with whom Briggs & Counsel was on brief
for appellant.
Russell B. Pierce, Jr., with whom Norman, Hanson & Detroy, LLC
was on brief for appellee, Christopher Gaffney.
Geraldine G. Sanchez, with whom Gavin G. McCarthy and Pierce
Atwood LLP were on brief for appellee, Guardian Life Insurance
Company of America.
March 10, 2005

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1The action was originally filed in state court, but it was
removed to the United States District Court for the District of
Maine pursuant to that court's diversity jurisdiction.
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STAHL, Senior Circuit Judge. In 2003, Ralph Cimon
("Ralph"), who had purchased a disability insurance policy from
Guardian Life Insurance Company of America ("Guardian"), sued
Guardian and Christopher Gaffney ("Gaffney"), the Guardian agent
who had sold him the policy, after Guardian terminated his policy
due to his failure to make a timely premium payment. The suit was
brought in Maine.1 Guardian filed a motion for summary judgment
and Gaffney filed a motion to dismiss. In response to the motion
to dismiss, Ralph filed a motion to transfer his claims against
Gaffney to the United States District Court for the District of
Massachusetts. The district court granted both the motion for
summary judgment and the motion to dismiss, and it denied the
motion to transfer. Ralph now seeks review of the grant of summary
judgment and the denial of his request to transfer. We affirm the
grant of the motion for summary judgment and vacate the denial of
the motion to transfer.
I. Background
We review the facts in the light most favorable to Ralph.
See, e.g., McAdams v. Mass. Mut. Life Ins. Co., 391 F.3d 287, 290
(1st Cir. 2004) (recounting the facts "in the light most favorable
to the party opposing summary judgment").

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2In 2001, Guardian merged with, and became the successor in
interest to, Berkshire Life Insurance Company, which actually
issued the policy in question. For ease of reference, we refer to
the relevant insurance company as Guardian throughout.
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In 1993, Guardian issued a disability insurance policy to
Ralph.2 The policy was "Non-Cancellable and Guaranteed Renewable
to Age 65" and was "issued in consideration of . . . the payment of
premiums," which were to be paid on a quarterly basis. The policy
listed "only one condition for [its] renewal . . . : the premiums
[had to] be paid as [the policy] required." And, the policy
provided that "[t]he payment of any premium will not continue this
policy in force beyond the date when the next premium is due,
except for [a thirty-one day] grace period . . . ."
From 1993 to 2000, Ralph timely paid his premiums.
However, he failed to pay his quarterly premium that was due in
December 2000 and failed to make subsequent payments due in March
2001, June 2001, and September 2001.
Late in the summer of 2000, Ralph and his wife, Jean
Cimon ("Jean"), moved from Massachusetts to Maine. Prior to
moving, Jean mailed a change of address card to Guardian. At the
time of the move, Jean also called Gaffney to inform him of the
move. During the call, Jean gave Gaffney their new Maine address
and telephone number, and she attempted to schedule an appointment
for Ralph so that he and Gaffney could discuss his insurance
coverage. Gaffney, however, told Jean that he was busy and would

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3It is not clear whether this final letter stated that the
policy had already lapsed or that the policy would lapse if Ralph
failed to pay the premium by a specified date. For purposes of
this appeal, we assume it said that the policy had already lapsed.
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call her back at a more convenient time. Gaffney never called Jean
back, and Jean did not make any further attempt to contact Gaffney.
On November 29, 2000, Guardian sent Ralph a letter
stating that he had a premium payment due on December 28, 2000.
The premium due date came and went without Guardian receiving a
payment. On January 28, 2001, Guardian sent Ralph a second letter
in which it offered to accept a late payment. Then, on March 6,
2001, having still not received the December 28, 2000 payment,
Guardian sent Ralph a third letter informing him that his policy
had lapsed.3 Ralph did not receive any of the letters, which were
apparently sent to an incorrect address in Maine.
From 1993 to 2000, Ralph had received letters on a
quarterly basis alerting him of his premium payment due dates. By
2000, Ralph had become accustomed to, and relied on, receiving such
letters. In fact, Ralph paid his premiums only after receiving
notice that payments were due. Thus, because Ralph never received
a letter reminding him to pay his December 28, 2000 premium, he
never paid that premium (or the three premiums due thereafter).
In October of 2001, Ralph became disabled. On November
16, 2001, Jean called Guardian and learned that the policy had been
cancelled. On November 27, 2001, Ralph sent a letter to Guardian

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4The statute states that "[u]nfair methods of competition and
unfair or deceptive acts or practices in the conduct of any trade
or commerce are . . . unlawful." Mass. Gen. Laws ch. 93A, § 2(a).
5It is not clear from the record whether Ralph sent a similar
letter to Gaffney.
6"Unfair claim settlement practices" constitute unfair methods
of competition and unfair or deceptive acts or practices in the
business of insurance under Mass. Gen. Laws ch. 93A, § 2. Mass.
Gen. Laws ch. 176D, § 3(9).
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requesting that the policy be reinstated and giving notice that he
intended to file a claim pursuant to Mass. Gen. Laws ch. 93A, § 24
if Guardian refused his request.5 Ralph also sent Guardian a check
for the unpaid premiums. Guardian refused to reinstate the policy.
As a result, in October 2003, Ralph sued Guardian and
Gaffney in Maine, claiming that he was entitled to damages because
the two "breached numerous duties of care" they owed to him under
the policy in connection with their failure to ensure that premium
notices were sent to his correct address. In addition, Ralph
alleged that he was entitled to recover under Mass. Gen. Laws ch.
93A, § 2 for Guardian and Gaffney's refusal to settle his claim and
reinstate the policy.6 Ralph also asserted that the two breached
the policy, and should be estopped from terminating the policy, due
to their failure to send premium notices to his correct address.
In response, Guardian filed a motion for summary judgment
and Gaffney filed a motion to dismiss. Guardian, citing Mass. Gen.

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7Section 110B provides:
No policy of insurance . . . , except a policy which by
its terms is cancellable by the company or is renewable
or continuable with its consent, or except a policy the
premiums for which are payable monthly or at shorter
intervals, shall terminate or lapse for nonpayment of any
premium until the expiration of three months from the due
date of such premium, unless the company within not less
than ten nor more than forty-five days prior to said due
date, shall have mailed . . . a notice showing the amount
of such premium and its due date. Such notice shall also
contain a statement as to the lapse of the policy if no
payment is made as provided in the policy. If such a
notice is not so sent, the premium in default may be paid
at any time within said period of three months. . . . No
action shall be maintained on any policy to which this
section applies and which has lapsed for nonpayment of
any premium unless such action is commenced within two
years from the due date of such premium.
Mass. Gen. Laws ch. 175, § 110B.
8In moving for summary judgment, Guardian also argued that all
of Ralph's claims were time-barred pursuant to the last sentence of
Mass. Gen. Laws ch. 175, § 110B. See supra note 7. The district
court did not address this argument and, without passing on its
merits, neither do we.
9Because the district court found that "the policy terminated
by law [due to the fact that the December 2000 premium remained
unpaid three months after it was due] without any requirement of
notice to [Ralph]," and because all of Ralph's claims against
Guardian were based on its refusal to accede to his demand that the
policy be reinstated and its failure to send premium notices to his
correct address, the district court decided that Guardian was
entitled to summary judgment.
10Gaffney also moved for dismissal based on improper venue and
Ralph's failure to state a claim on which relief could be granted.
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Laws ch. 175, § 110B,7 insisted that it was entitled to summary
judgment because the policy had lapsed as a matter of law.8 The
district court agreed and allowed Guardian's motion.9 Gaffney
moved for dismissal based on lack of personal jurisdiction.10 Ralph

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11Ralph also responded by arguing that the court could exercise
jurisdiction over Gaffney. Section 1631 of Title 28 provides:
Whenever a civil action is filed in a court . . . and
that court finds that there is a want of jurisdiction,
the court shall, if it is in the interest of justice,
transfer such action . . . to any other such court in
which the action . . . could have been brought at the
time it was filed . . . .
12The district court determined that transfer would not be in
the interest of justice solely because it was granting Guardian's
motion for summary judgement.
13Ralph does not challenge the district court's ruling that it
lacked personal jurisdiction over Gaffney.
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responded by filing a motion to transfer the action against Gaffney
to Massachusetts pursuant to 28 U.S.C. § 1631.11 In granting
Gaffney's motion to dismiss, the district court ruled that it
lacked personal jurisdiction and that transfer would not be in the
interest of justice.12 Ralph seeks review of the district court's
grant of Guardian's motion for summary judgment and refusal to
transfer the action against Gaffney.13
II. Discussion
We first consider whether the district court erred in
granting Guardian's motion for summary judgment and then decide
whether it erred in denying Ralph's motion to transfer.
A. The Grant of Guardian's Motion for Summary Judgment
We review the grant of a motion for summary judgment de
novo. GTE Wireless, Inc. v. Cellexis Int'l, Inc., 341 F.3d 1, 4
(1st Cir. 2003). Summary judgment is appropriate only if the
record reveals "that there is no genuine issue as to any material

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14There is no dispute that Massachusetts law governs this
action.
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fact and that the moving party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c). We may affirm a grant of
summary judgment on any ground supported by the record. See Geffon
v. Micrion Corp., 249 F.3d 29, 35 (1st Cir. 2001).
The district court granted Guardian's motion for summary
judgment based on its finding that, under Mass. Gen. Laws ch. 175,
§ 110B,14 Ralph's policy automatically terminated when he failed to
pay the December 2000 premium within three months of its due date.
We think that the district court was wrong to interpret section
110B as providing for automatic termination of a policy after three
months for nonpayment of a premium. We read the statute as
providing a degree of protection for the insured by putting limits
on an insurance company's contractual ability to cancel a policy
based on nonpayment of a premium; we do not read it as providing
for termination as a matter of law. Still, the statute does not
prohibit an insurance company from terminating a policy--in
accordance with the policy's terms--for nonpayment of a premium.
Rather, it simply provides that a policy cannot be terminated for
nonpayment of a premium until three months after the date on which
the premium was due (unless notice was sent in accordance with the
statute). See supra note 7.

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15Although the policy stated that there would be a grace period
following a missed premium payment of only thirty-one days, we have
not been presented with sufficient evidence that Guardian complied
with section 110B's premium notice requirement. Therefore, we
cannot say that Guardian was entitled to terminate the policy at
the end of the thirty-one day grace period (that is, prior to the
expiration of section 110B's three-month period).
16Although Guardian sent Ralph notice that the policy had
lapsed on March 6, 2001, prior to the date on which the policy
could have been terminated according to section 110B, that does not
alter our conclusion that the policy terminated for nonpayment
before Ralph tendered payment for the missed premium. To be sure,
had Ralph tendered payment on, for example, March 21, 2001 (after
the date of the lapse notice but before the expiration of section
110B's three-month period), we would be dealing with a different
case. But, he did not tender payment until November 2001 and,
thus, cannot take advantage of Guardian's premature lapse notice.
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Here, the policy stated that it would terminate due to a
missed premium payment: "The payment of any premium will not
continue this policy in force beyond the date when the next premium
is due . . . ."15 And, starting with the December 28, 2000 payment,
Ralph missed four consecutive premium payments and did not attempt
to tender a late payment until November of 2001. Thus, regardless
of whether Guardian sent notice of the December 28, 2000 payment
deadline, the policy terminated pursuant to its terms on March 28,
2001--three months after the due date of the first missed premium
and well before Ralph attempted to tender a late payment in
November of that year.16
Ralph argues that Guardian should be estopped from
terminating the policy pursuant to his nonpayment of the December
28, 2000 premium because he relied on Guardian to send notices of

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17Guardian had in fact sent Ralph notices of his premium
payment deadlines for seven years.
18Guardian maintains that because Ralph did not respond in the
district court to its argument that the policy terminated due to
his failure to pay premiums, he has forfeited his right to advance
his estoppel argument on appeal. We decline Guardian's invitation
to rule on that ground.
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premium payment deadlines before making such payments17 and Guardian
failed to send proper notice of the December 28, 2000 deadline.18
To establish that Guardian should be estopped from terminating the
policy due to the missed premium, Ralph must convince us that,
among other things, there is an equitable defense available to an
insured who violates a contractual obligation and he acted
reasonably in relying on Guardian to remind him of the December 28,
2000 payment deadline before making that payment. See Turnpike
Motors, Inc. v. Newbury Group, Inc., 596 N.E.2d 989, 993 (Mass.
1992) ("It is . . . necessary . . . that the reliance of the party
seeking the benefit of estoppel must have been reasonable.").
We think that even if there were an equitable defense
available, Ralph would not be entitled to invoke it because his
reliance on Guardian to remind him of the December 28, 2000 payment
deadline was unreasonable. Ralph missed four consecutive quarterly
payments (and, in so doing, failed to tender a premium payment for
more than a year) due to his claimed reliance on Guardian. Ralph's
reliance was patently unreasonable, and therefore, he would not be

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entitled to benefit from an equitable remedy even if one were
available.
Because the policy terminated according to its terms on
March 28, 2001 due to a missed premium payment (regardless of
whether Guardian sent suitable notice of the payment deadline),
Ralph's claims, other than his estoppel claim, fail. And, because
Ralph cannot show that his failure to pay the missed premium was
reasonable, his estoppel claim likewise fails. The grant of
Guardian's motion for summary judgment is affirmed.
B. The Refusal to Transfer the Action Against Gaffney
We now address whether the district court erred in
denying Ralph's motion to transfer the action against Gaffney from
Maine to Massachusetts pursuant to 28 U.S.C. § 1631. We review a
refusal to transfer for abuse of discretion. See Hill v. U.S. Air
Force, 795 F.2d 1067, 1070 (D.C. Cir. 1986).
Section 1631 directs a district court to transfer a case
in which there is "a want of jurisdiction, . . . if [transfer] is
in the interest of justice." Here, the district court determined
that transfer would not be in the interest of justice because it
was granting Guardian's motion for summary judgement. The district
court's determination would have been reasonable if Ralph's claims
against Gaffney were entirely derivative of his claims against
Guardian. But, we do not understand that to be the case; rather,
we understand Ralph's claims against Gaffney to rest on independent

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obligations that Gaffney owed to Ralph. For example, Ralph's claim
that Gaffney "breached numerous duties of care" is premised in part
on Gaffney's duty to inform Guardian of Ralph's new Maine address.
Accordingly, we find that the district court erred in denying the
motion to transfer on the ground given.
Nevertheless, it may be that there are other grounds on
which to deny transfer, as urged on us by Gaffney. See Britell v.
United States, 318 F.3d 70, 75 (1st Cir. 2003) ("[I]f an action .
. . is fanciful or frivolous, it is in the interest of justice to
dismiss it rather than to keep it on life support (with the
inevitable result that the transferee court will pull the plug).").
The relevant claims were based on a conversation that Jean had with
Gaffney late in the summer of 2000, more than three years before
Ralph filed suit in the fall of 2003. Consequently, it appears
that the common law claims against Gaffney are time-barred. See
Mass. Gen. Laws ch. 260, § 2A ("Except as otherwise provided,
actions of tort, actions of contract to recover for personal
injuries, and actions of replevin, shall be commenced only within
three years next after the cause of action accrues.").
Although the remaining claim, based on Mass. Gen. Laws
ch. 93A, is not time-barred, see Mass. Gen. Laws ch. 260, § 5A
("Actions arising on account of violations of any law intended for
the protection of consumers, including . . . chapter ninety-three
A[,] . . . shall be commenced only within four years next after the

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19According to Mass. Gen. Laws ch. 93A, § 9(3), "[a]t least
thirty days prior to the filing of [a chapter 93A] action, a
written demand for relief, identifying the claimant and reasonably
describing the unfair or deceptive act or practice relied upon and
the injury suffered, shall be mailed or delivered to any
prospective respondent."
20Gaffney argues that transfer of the claims against him would
be improper under 28 U.S.C. § 1631 because that statute "directs a
court to transfer an 'action' over which it lacks jurisdiction,
rather than an individual claim." Hill, 795 F.2d at 1070. We
decline the invitation to affirm the district court on this ground.
Because the district court granted Guardian's motion for summary
judgment, the claims asserted against Gaffney were the only claims
that remained in the action. Thus, even if the transfer statute
prohibits the transfer of some but not all claims in an action (and
we question whether it does), it would not prohibit transfer under
the circumstances of this case. Cf. United States v. County of
Cook, 170 F.3d 1084, 1089 (Fed. Cir. 1999) (finding that Congress
"inten[ded] . . . § 1631 to permit the transfer of less than all of
the claims in an action").
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cause of action accrues."), it nonetheless is barred if Ralph
failed to provide Gaffney with the pre-suit notice required by
Mass. Gen. Laws ch. 93A, § 9(3).19 See, e.g., Entrialgo v. Twin
City Dodge, Inc., 333 N.E.2d 202, 204 (Mass. 1975) ("A demand
letter listing the specific deceptive practices claimed is a
prerequisite to suit and as a special element must be alleged and
proved."). Although Ralph sent a letter that gave notice of his
Mass. Gen. Laws ch. 93A claim to Guardian, it is not clear that he
also sent a copy of that letter to Gaffney.
In light of the above, we vacate the denial of Gaffney's
motion to transfer20 and remand the action against Gaffney for the

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21We note that there is a debate over whether 28 U.S.C. § 1631
provides for transfers only where a federal court lacks subject
matter jurisdiction, or whether it also applies where other types
of jurisdiction are lacking, including personal jurisdiction.
Compare Roman v. Ashcroft, 340 F.3d 314, 328 (6th Cir. 2003)
(concluding that "§ 1631 . . . applies to federal courts
identifying any jurisdictional defect, regardless of whether it
involves personal or subject matter jurisdiction."), and Renner v.
Lanard Toys Ltd., 33 F.3d 277, 284 (3d Cir. 1994) (indicating that
where personal jurisdiction is lacking, a court may consider a
transfer pursuant to § 1631), and Ross v. Colo. Outward Bound Sch.,
Inc., 822 F.2d 1524, 1526-27 (10th Cir. 1987) (same), with
Songbyrd, Inc. v. Estate of Grossman, 206 F.3d 172, 179 n.9 (2d
Cir. 2000) (noting that "the legislative history of section 1631
provides some reason to believe that this section authorizes
transfers only to cure lack of subject matter jurisdiction"), and
Pedzewick v. Foe, 963 F. Supp. 48, 50 (D. Mass. 1997) ("agree[ing]
with the line of cases limiting section 1631 to transfer for lack
of subject matter jurisdiction only"), and 15 Charles Alan Wright
et al., Federal Practice and Procedure § 3842 (2d ed. 1986)
("[Section 1631] is concerned only with subject matter
jurisdiction. It has nothing to do with personal jurisdiction or
venue."). Those that construe § 1631 narrowly do so in reliance on
the statute's legislative history, see, e.g., Pedzewick, 963 F.
Supp. at 50 (noting that a Senate report issued when Congress
enacted § 1631, S. Rep. No. 97-275, at 11 (1987), reprinted in 1982
U.S.C.C.A.N. 11, 21, 40, states in part that the statute "would
authorize the court in which a case is improperly filed to transfer
it to a court where subject matter jurisdiction is proper"), while
those that read the statute expansively generally rely on its
language and Congress' intent in passing it, see, e.g., Roman, 340
F.3d at 328 (observing that "[t]he language of § 1631 does not
refer to any specific type of jurisdiction, only referring broadly
to jurisdiction" and that "a broad construction of the statute is
consistent with Congress's intent to protect a plaintiff against
either additional expense or the expiration of a relevant statute
of limitations in the event that the plaintiff makes an error in
trying to select the proper court within the complex federal court
system" (internal quotation marks omitted)). Although we are
inclined to read § 1631 as allowing for transfers where a federal
court lacks any type of jurisdiction (including personal
jurisdiction), we need not definitely decide the issue today, as
Gaffney did not defend the district court's denial of Ralph's
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district court to reconsider whether transfer is in the interest of
justice.21

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motion to transfer by arguing that § 1631 does not permit transfer
to cure defects in personal jurisdiction. See Smilow v.
Southwestern Bell Mobile Sys., Inc., 323 F.3d 32, 43 (1st Cir.
2003) ("Issues raised on appeal in a perfunctory manner (or not at
all) are waived.").
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The grant of Guardian's motion for summary judgment is affirmed;
the denial of Gaffney's motion to transfer is vacated and the
action against Gaffney is remanded for proceedings consistent with
this opinion.

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