United States District Court, E.D. Missouri, Eastern Division
Petrovic, Petitioner, Pro Se.
States of America, Respondent, represented by Dianna R.
Collins, OFFICE OF U.S. ATTORNEY, Nicholas P. Llewellyn,
OFFICE OF U.S. ATTORNEY & Richard E. Finneran, OFFICE OF U.S.
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY, District Judge.
matter is before the Court on Plaintiff's Motion to
Convert A Fed.R.Crim.P. into an Action for Damages Against
United States of America, [Doc. No. 8]. Defendant has
responded to the motion. For the reasons set forth below, the
Motion is granted.
Eighth Circuit Court of Appeals has addressed the very issue
at bar. In United States v. Bailey, 700 F.3d 1149
(8th Cir. 2012), the Court held that a criminal defendant
should be afforded the opportunity to convert a Rule 41
motion into a civil claim for damages.
We have not previously had occasion to determine the
appropriate standard of review for the denial of a motion to
convert, but such a motion is analogous to a motion for leave
to amend the pleadings. Cf. Fed.R.Civ.P. 15(a)(2).
We therefore review the district court's denial of
Bailey's motion for an abuse of discretion. See
Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 755
(8th Cir.2006). We have previously considered whether
compensatory damages are available under Rule 41 when the
government has lost or destroyed a defendant's property.
See United States v. Hall, 269 F.3d 940
(8th Cir.2001). In Hall, the federal government had
improperly disposed of a pickup truck and a waterbed which
had been seized from the defendant. Id. at 941.
Since the property could no longer be returned, the district
court granted damages equal to the fair market value of the
items. Id. Although such an award was not authorized
under Rule 41 itself, "the court should grant the
movant... an opportunity to assert an alternative claim"
under a statute which authorizes money damages against the
government. Id. at 943.
Here, the district court concluded that Bailey's property
appeared no longer to be in the government's possession
and that its current whereabouts "remain[ed] a
mystery." It denied Bailey's motion to convert his
Rule 41 motion into a civil claim for damages, stating
without further explanation that "leave to amend would
be futile under the circumstances" and that "[a]
civil action would have to be brought separately." It
then denied Bailey's Rule 41 motion and dismissed the
We conclude that the district court abused its discretion in
denying Bailey's motion to convert the Rule 41 action
into a civil claim for damages. When a court determines that
the government no longer possesses the property whose return
is sought, it "should grant the movant... an opportunity
to assert an alternative claim for money damages."
Hall, 269 F.3d at 943. The district court failed to
grant Bailey that opportunity when it dismissed his Rule 41
motion and required him to initiate a separate damages
action. Under Hall, Bailey should have been allowed
an opportunity to convert his Rule 41 motion into an action
for damages against the United States.
This conclusion is supported by the fact that the statute of
limitations might well bar Bailey from bringing a separate
action. The statute of limitations on claims under 42 U.S.C.
§ 1983 and Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct.
1999, 29 L.Ed.2d 619 (1971), is six years in Minnesota.
Minn.Stat. § 541.05, subd. 1(10); see Sanchez v.
United States, 49 F.3d 1329, 1330 (8th Cir.1995) (per
curiam). Bailey's property was seized nine years ago.
When asked at oral argument whether equitable tolling would
apply to Bailey's claim, the government did not concede
that it would. Since the damages claim arises "out of
the same conduct, transaction, or occurrence" as
Bailey's original Rule 41 motion, it relates back to the
original filing date of his motion. PeÃ±a v. United
States, 157 F.3d 984, 987 & n. 3 (5th Cir.1998) (citing
Bailey, 700 F.3d at 1152-53.
should therefore be allowed to convert his Rule 41 Motion,
thereby allowing him the opportunity to state an alternative
claim for money damages.
HEREBY ORDERED that Plaintiff's Motion to Convert, [Doc.
No. 8], is granted.
FURTHER ORDERED that Defendant shall file a response to the
Court's show cause Order of September 15, 2015 within 14