Cardona del Toro v. USA

• Court: Court of Appeals for the First Circuit
• Decided: January 19, 1993
• Docket: 92-1845
• Status: Published

Opinion

USCA1 Opinion

January 19, 1993
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 92-1845

                              JOSE E. CARDONA DEL TORO,
                               d/b/a TORTUGUERO MOTORS,

                                Plaintiff, Appellant,

                                          v.

                          UNITED STATES OF AMERICA, ET AL.,

                                Defendants, Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
                                               ___________________

                                 ____________________

                                        Before

                                Selya, Circuit Judge,
                                       _____________
                            Coffin, Senior Circuit Judge,
                                    ____________________
                               and Cyr, Circuit Judge. 
                                        _____________

                                 ____________________

            Emilio F. Soler for appellant.
            _______________
            John E. Mudd for National Insurance Crime Bureau.
            ____________
            Carlos Lugo Fiol, Assistant Solicitor General, with whom  Anabelle
            ________________                                          ________
        Rodriguez,  Solicitor General,  and Reina  Colon de  Rodriguez, Deputy
        _________                           __________________________
        Solicitor General, were on  brief for the Commonwealth of  Puerto Rico
        and Ramon Colon Fernandez.
            Maria Hortensia Rios, Assistant United States Attorney, with  whom
            ____________________
        Daniel F. Lopez-Romo, United States Attorney, and Miguel A. Fernandez,
        ____________________                              ___________________
        Assistant  United States Attorney, were on brief for the United States
        of America.

____________________

____________________

COFFIN, Senior  Circuit Judge.   This appeal  challenges the
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          district court's  dismissal  of plaintiff's  constitutional  tort

          claims  against the  United  States, the  Commonwealth of  Puerto

          Rico, officers  of both  governments, and the  National Insurance

          Crime Bureau (NICB) as time-barred.  We affirm.

               The claims  arose from a  seizure of allegedly  stolen motor

          vehicles from plaintiff's  car dealership by  agents of the  FBI,

          the Commonwealth of Puerto Rico, and  the NICB.  The seizure took

          place  sometime in  November,  1988.   A complaint,  subsequently

          amended, was  filed on November 1,  1990.  All agree  that a one-

          year statute  of limitations  applies to  all claims.   Plaintiff

          raised  the possible  tolling  of the  limitations period  in his

          opposition  to a  motion to  dismiss.   He cited  a June  5, 1989

          letter  from  his  attorney to  the  FBI  seeking  return of  the

          vehicles   and   subsequent  undescribed   conversations  between

          plaintiff or his attorney and the FBI.

               The  district  court announced  early  in  its opinion  that

          sufficient  discovery  time  had  been allowed  and  that,  where

          appropriate,  it would  take cognizance  of documents  beyond the

          pleadings.    It   subsequently  granted  summary   judgment  for

          defendants  on plaintiff's cause of action  seeking return of the

          vehicles.   In dealing with  plaintiff's Bivens claim against the
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          United  States and an FBI agent, Maldonado, and with claims under

          42 U.S.C.    1983 against  the Commonwealth and  NICB, the  court

          first  concluded  that the  June 5,  1989  letter had  tolled the

          running  of the limitations period, but then ruled that more than

a  year  had  passed between  that  date and  the  filing  of the

          complaint.    It  refused  to   take  account  of  assertions  in

          plaintiff's opposition  to the motion  to dismiss that  there had

          been subsequent conversations between plaintiff and the FBI.  The

          court dismissed the claims under Fed. R. Civ. P. 12(b)(6).

               We shall confine our  discussion to the dismissal of  claims

          against  FBI  agent Maldonado.    If that  dismissal  was proper,

          dismissal of the more  vulnerable claims against the Commonwealth

          and NICB must have been correct.

               We first address whether, in light of Maldonado's failure to

          raise the statute of limitations  defense, the district court sua
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          sponte  could dismiss the claim as  time-barred.  Appellant cites
          ______

          Badway v.  United States,  367 F.2d  22, 25  (1st Cir. 1966),  in
          ______     _____________

          which  we  held that  a limitations  defense  not raised  "in the

          pleadings"  was  waived.     But  not  only  is  such   a  waiver

          inapplicable to the power of the court to dismiss a  claim on its

          own motion, see Leonhard v. United States, 633 F.2d 599, 609 n.11
                      ___ ________    _____________

          (2d Cir. 1980), but the mandate of Fed. R. Civ. P. 8(c) requiring

          affirmative  defenses to  be set forth  in a  responsive pleading

          does not  apply to a motion to dismiss.   Compare Fed. R. Civ. P.
                                                    _______

          7(a) and 7(b);  see also Serrano v. Torres, 764  F.2d 47, 49 (1st
                          ___ ____ _______    ______

          Cir. 1985). 

               Appellant  also argues  that the  district court  improperly

          dismissed his complaint without  permitting him an opportunity to

          flesh out  his allegations  concerning tolling.   The allegations

          referred  not  only  to the  June  5,  1989  letter but  also  to

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subsequent  conversations between plaintiff (and also plaintiff's

          attorney) and the FBI "fully  discussing the vehicles' return and

          damages  compensation."    The  district court,  while  accepting

          without analysis  the tolling  effect of  the letter, refused  to

          consider the  allegations regarding the  conversations since they

          were  only  statements  and  arguments  of  counsel  in  a  legal

          memorandum.

               We do  not reach  the question whether  sufficient attention

          was   paid  to   the   post-complaint   allegations  of   tolling

          conversations.   Rather,  we hold  that the  June 5,  1989 letter

          seeking return of  the vehicles could not  toll the Bivens and   
                                                              ______

          1983 civil rights claims  for damages.  The letter,  addressed to

          the FBI director  in Puerto Rico,  detailed the facts  concerning

          the seizure of the vehicles and appellant's  cooperation with the

          FBI and concluded as follows:

                    I have  withheld any  federal court action  in the
               expectancy that said cars are returned to my client, to
               no avail.   Therefore, I am hereby requesting  from you
               the  return  forthwith of  the  seized  vehicles to  my
               client. 

               Our own precedents concerning the requirements under  Puerto

          Rico  law for tolling through extrajudicial claims are clear.  As

          we said  in Rodriguez  Narvaez v. Nazario,  895 F.2d 38,  43 (1st
                      __________________    _______

          Cir.  1990), "tolling is effective  with regard only to identical

          causes of action."   Most  recently, in Riofrio  Anda v.  Ralston
                                                  _____________     _______

          Purina  Co., 959 F.2d 1149,  1154 (1st Cir.  1992), we emphasized
          ___________

          that an extrajudicial claim must seek  the same relief ultimately

          sought  in a  federal suit  if that  claim is  to have  a tolling

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effect.   In  so holding,  we reaffirmed  Hernandez Del  Valle v.
                                                    ____________________

          Santa Aponte, 575 F.2d 321, 323-324 (1st Cir. 1978) (letters from
          ____________

          plaintiff  demanding   only  reinstatement  held   inadequate  to

          constitute an extrajudicial claim  sufficient to toll the statute

          of  limitations for  a  suit for  damages).   Our  reasoning  and

          holding  in Del Valle were approvingly noted by the Supreme Court
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          of Puerto  Rico in the similar case of Cintron v. Commonwealth of
                                                 _______    _______________

          Puerto  Rico, No.  CE-88-761, slip  op.,  translation, at  11 n.8
          ____________

          (Dec. 7, 1990).  See also Torres v. Superintendent of Police, 893
                           ________ ______    ________________________

          F.2d 404, 407 (1st Cir. 1990); Fernandez v. Chardon, 681 F.2d 42,
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          49 (1st Cir. 1982),  aff'd, Chardon v. Fumero Soto, 462  U.S. 650
                               _____  _______    ___________

          (1983).

               We  see nothing  in  recent jurisprudence  issuing from  the

          Supreme  Court  of  Puerto  Rico   that  casts  doubt  on   these

          precedents.  In a recent case, Zambrana Maldonado v. Commonwealth
                                         __________________    ____________

          of Puerto  Rico, 92 JTS 12, slip  op. at 23 (Jan.  30, 1992), the
          _______________

          court  reiterated  standard  formulations  such   as  these  from

          Albaladejo's  treatise  on  civil  law:     while  "a  series  of

          intermediate possibilities" exist between "the mere reminder of a

          debt  . .  .  and  the  pure act  of  demanding  it  inexorably,"

          interruption  of the  limitations period  requires that  "more or

          less categorically  or urgently,  the decision to  obtain payment

          [must be] shown."

               In Zambrana Maldonado, the claim held sufficient to toll set
                  __________________

          forth the  date, place,  events, damages suffered,  and expressed

          "the unequivocal will  of Mr. Zambrana Maldonado to  exercise his

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right to have the Government indemnify him for damages suffered."

          Id.  at 35.  Such presents an  extrajudicial claim of far greater
          __

          specificity and  relevance than the  mere request  for return  of

          vehicles contained in plaintiff's letter of June 5, 1989.

               We therefore  conclude that the  one-year limitations period

          was not tolled.  Dismissal was required as a matter of law.

               Affirmed. 
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