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                      [NOT FOR PUBLICATION]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

                               -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-
