
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          January 19, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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                       _____________________          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                                         -3-          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                                         -4-          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                                         -5-          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.                ________                                         -6-
