Cardona del Toro v. USA ( 1993 )

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[NOT FOR PUBLICATION]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
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
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
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
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,
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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